People v. Edwards

Decision Date30 December 1976
Docket NumberCr. 19364
Citation135 Cal.Rptr. 411,557 P.2d 995,18 Cal.3d 796
Parties, 557 P.2d 995 The PEOPLE, Plaintiff and Respondent, v. Ronald Nevels EDWARDS, Defendant and Appellant. In Bank
CourtCalifornia Supreme Court

Elaine A. Alexander, San Diego, under appointment by the Supreme Court, and Judith N. Keep, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth, A. Wells Petersen and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Ronald Nevels Edwards appeals from a judgment following a jury conviction of possession of a firearm by an ex-felon. (Pen.Code, § 12021, subd. (a).) The principal issue with which we deal is that raised by defendant's contention that a sentencing judge must, in all instances, state his reasons for denying probation when the denial is contrary to a recommendation therefor. (See Pen.Code, § 1203, subd. (a).) 1 although we are of the view that a statement of the judge's reasons for denying recommended probation is a preferred practice, we reject defendant's contention that the rule which he urges is either constitutionally compelled or must be imposed by us in the exercise of our supervisory authority over state criminal procedure (see, e.g., People v. Rhodes (1974) 12 Cal.3d 180, 186--187, 115 Cal.Rptr. 235, 524 P.2d 363; People v. Cahan (1955) 44 Cal.2d 434, 442, 282 P.2d 905).

In July 1974, during the course of a social gathering, defendant and Randolph Smith discussed the subject of firearms. Smith left the party and returned later with a nine millimeter pistol and ammunition. Shortly thereafter Smith lent defendant the firearm and several cartridges.

Eight days later in response to a series of conflicting stories told to them by Smith, 2 police proceeded to defendant's residence and arrested him for grand theft of Smith's gun. Although defendant was never prosecuted for grand theft, he was charged four weeks after his initial arrest as an ex-felon in possession of a firearm. (§ 12021, subd. (a).) 3 The information alleged a prior conviction in 1971 for selling marijuana, a felony. (See former Health & Saf.Code, § 11531, now § 11360.) 4

In March 1975 a jury found defendant guilty of a violation of section 12021 and the trial court refused to grant probation as recommended in a comprehensive and favorable presentencing report. Defendant urges in addition to his contention that the court's failure to state its reasons for denying probation offends concepts of procedural due process that the court's failure to grant probation constitutes an abuse of discretion.

Before proceeding to a discussion of the foregoing contentions we first consider an obvious error in sentencing defendant. The court purported to pronounce judgment in a manner which would have augmented defendant's sentence pursuant to section 3024, subdivision (c). 5 The court's reliance on defendant's prior conviction for the dual purpose of augmenting sentence and providing an essential element of the charged offense, however, runs afoul of the established rule that when a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the minimum sentence may not be increased because of the indispensable prior conviction. (People v. Floyd (1969) 71 Cal.2d 879, 883, 80 Cal.Rptr. 22, 457 P.2d 862; People v. Ford (1964) 60 Cal.2d 772, 794, 36 Cal.Rptr. 620, 388 P.2d 892; In re Shull (1944) 23 Cal.2d 745, 749--752, 146 P.2d 417; People v. Perry (1974) 42 Cal.App.3d 451, 460, 116 Cal.Rptr. 853.) Here, proof of defendant's marijuana conviction may be used Only to establish an element of a violation of section 12021 and Not to increase the term of the sentence under section 3024.

The statutory responsibility of sentencing courts to order preparation of probation reports and attest to having read and considered the contents of such reports carries with it the responsibility, albeit a discretionary one, to consider thoughtfully and seriously a grant of probation if the judge determines that there exists 'circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be subserved . . ..' (§ 1203, subd. (a).) Although the traditional view that a grant of probation is a privileged act of grace or clemency has been discredited in favor of the modern view that such a grant should be deemed an alternative form of punishment in those cases when it can be used as a correctional tool (see People v. Vickers (1972) 8 Cal.3d 451, 455--456, 105 Cal.Rptr. 305, 503 P.2d 1313), the mechanics of granting or denying probation have not been prescribed by statutory or judicial guidelines 6 nor have they often been tested against procedural due process requirements.

The primary function served by the probation report required by section 1203 is to assist the court in determining an appropriate disposition after conviction. 7 The overall significance of probation reports finds vivid illustration from the high proportion of recommendations contained in such reports actually accepted by sentencing courts. (Carter & Wilkins, Some Factors in Sentencing Policy (1967) 58 J.Crim.L.C. & P.S. 503, 504--508.) 8 Attentive to their duty of ensuring fair and impartial probation and sentencing hearings, courts of this state have condemned conditions of probation which have no relationship to the crime for which a defendant stands convicted, which relate to conduct not itself criminal and which require or forbid conduct not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.) Courts have also refused to countenance, as unduly prejudicial, report data and observations devoid of supporting factual information sufficient to corroborate reliability. (People v. Peterson (1973) 9 Cal.3d 717, 726--728, 108 Cal.Rptr 835, 511 P.2d 1187; People v. Calloway (1974) 37 Cal.App.3d 905, 908--909, 112 Cal.Rptr. 745; accord United States v. Tucker (1972) 404 U.S. 443, 446--447, 92 S.Ct. 589, 30 L.Ed.2d 592.) We held in Peterson that a defendant is not afforded procedural due process protections in probation hearings when the procedures employed are 'fundamentally unfair' to him. (People v. Peterson, supra, 9 Cal.3d 717, 726, 108 Cal.Rptr. 835, 511 P.2d 1187; see also People v. Keefer (1973) 35 Cal.App.3d 156, 169, 110 Cal.Rptr. 597.)

As is suggested by the foregoing decisions we are aware that a properly administered probation program not only serves society in effecting desirable rehabilitative goals (see Cal. Youth Authority, California's Probation Subsidy Program (A Progress Report to the Legislature, Report No. 2, Jan. 1975), pp. i--ii, 10--25; Report of the State Dept. of Justice, Crime and Delinquency in Cal. (1972) pp. 27--28, 32--33), but also insures that important rights are not denied to any person convicted of a crime. None of the foregoing or other authorities to which we are referred, however, suggests that a trial judge must explain his reasons for denying a grant of probation when his denial is contrary to the recommendation in the report.

Although we have required a statement of reasons for denial of an application for parole release (see In re Sturm (1974) 11 Cal.3d 258, 113 Cal.Rptr. 361, 521 P.2d 97), the circumstances which made it fundamentally unfair to fail to state reasons for the denial in that context do not, for the reasons which next follow, pertain in the instant case. Adult Authority hearings which deal with parole matters are administrative in nature and afford far fewer procedural safeguards than in the case of judicial proceedings for the determination of punishment for criminal conduct after a finding of guilt. (In re Tucker (1971) 5 Cal.3d 171, 95 Cal.Rptr. 761, 486 P.2d 657.) Because of the very absence of such procedural safeguards, including the lack of counsel and a fully documented record, the opportunity for an inmate to challenge arbitrary or capricious action by the Adult Authority may well be severely infringed. Without a statement of reasons for the denial of an application for parole, for instance, it is unlikely that an inmate can state a prima facie case necessary to gain even a review of claimed arbitrary action by the Adult Authority. (See In re Sturm, supra, 11 Cal.3d 258, 269, 113 Cal.Rptr. 361, 521 P.2d 97; In re Swain (1949) 34 Cal.2d 300, 209 P.2d 793.)

A denial of probation, on the other hand, is a judicial act rendered with the full panoply of procedural protections. The court is provided with a report of the probation officer containing information of the defendant's background, his prior involvements, if any, with law enforcement agencies, his propensities and dispositions, his future plans if probation is granted, and the judge is required to verify that he has read and considered such report which often contains communications both favorable and unfavorable to defendant. The defendant is afforded an opportunity to present probation counselors with out-of-court character testimony and explanations of guilt and he is afforded the benefit of counsel at all stages of the proceedings if he so desires, including the presence of an attorney at the probation and sentencing hearing. The judgment of the court is appealable and a complete record of proceedings is provided for appellate review. Unlike the situation following the denial of an application for parole there is thus an unconditional right of review which is not dependent upon reasons stated by the trial court for the denial of a grant of probation. We are unable to discern that merely by reason of an absence of such a statement an unfairness which offends procedural due process concepts results. Fundamental fairness to the defendant is otherwise assured in entertaining a direct appeal on a full judicial record. 9

Defendant argues,...

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