People v. Garn

• Decision Date: 16 November 1966
• Docket Number: Cr. 11513
• Citation: 246 Cal.App.2d 482,54 Cal.Rptr. 867
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Joseph GARN, Defendant and Appellant.

Page 867

54 Cal.Rptr. 867

246 Cal.App.2d 482

The PEOPLE, Plaintiff and Respondent, v. Richard Joseph GARN, Defendant and Appellant.

Cr. 11513.

Court of Appeal, Second District, Division 4, California.

Nov. 16, 1966.

Glory D. Coffey, Sun Valley, under appointment by the District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Bechefsky, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Justice.

Defendant was charged with a violation of section 288 of the Penal Code (lewd and lascivious acts on the body of a child). He was tried and convicted. That judgment was reversed by this court, in an unpublished opinion (2d Civ. No. 9730, filed March 11, 1965), because of the improper admission of statements obtained by the police in violation of the rules laid down in People v. Dorado (1964) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. The case was retried before a jury, resulting in a conviction. By stipulation, an alleged prior conviction was submitted to the court and the court found the allegation to be true. Probation was denied and a state prison sentence was imposed. Defendant has appealed.

I

It is not contended that the evidence was insufficient to support the verdict. The grounds here urged are:

(1) Defendant was denied a fair trial because the case was heard before the same judge as the one who had presided at the first trial and that judge, then, had displayed bias against defendant;

(2) Defendant was denied effective representation by counsel, in that his trial counsel (a deputy public defender) did not subpoena three witnesses whom defendant desired to have testify. Neither contention has merit.

The first contention is not properly before us, since no objection to the assignment of the trial judge was made; not having been made at the time and in the manner required by statute, the point is now barred. (Code Civ.Proc. § 170.)

We are not told what witnesses defendant desired, nor what testimony they might have given. Nor was the omission called to the attention of the trial court. Under these circumstances, we have no basis for considering the point. Except in the most extreme instances, the tactical decision of trial counsel to call, or not to call, any particular witness is not reviewable in an appellate court (People v. Brooks (1966) 64 Cal.2d 130, 140, 48 Cal.Rptr. 879, 410 P.2d 383). Certainly it cannot be reviewed without more than the mere allegation with which we are here faced.

It follows that there was no error in the finding of guilt.

II

However, we are faced with a difficult procedural problem.

When defendant was arraigned for sentence, the following proceedings took place:

'THE COURT: Richard Garn.

'MR. POWELL: Yes, your Honor.

'THE COURT: Is that your true name?

'THE DEFENDANT: Yes, sir.

'THE COURT: Do you waive further arraignment for judgment and sentence?

'MR. POWELL: Yes, I do, your Honor.

'I have a brief comment to make.

'THE COURT: Yes, sir.

'MR. POWELL: Your Honor, as you know, having tried this matter before a jury; with a jury, I should say, the defendant was convicted of Section; violation of Section 288 of the Penal Code on a retrial after a successful appeal.

'The defendant has been in State Prison for about a year, waiting this appeal, and has been in custody a total of about a year and a half all told. The previous file; the file on the previous case reflects--the file of the previous trial, I should say, reflects that several doctors were appointed to examine the defendant with reference to his then possible sexual psychopathy and it was found that he was--or was not a mentally disordered sex offender, as the terminology was at the time and they determined, although he was in their opinion a mentally disordered sex offender, he was not amenable to treatment in view of his then and present abject denial of guilt. They felt in view of his resistance to any knowledge of wrongful conduct that no amount of treatment in a hospital setting would be of any avail.

'The Probation Officer which (sic) filed the report this date has concluded that the defendant is of the same frame of mind after the conclusion of this trial as he was at the conclusion of the other. Namely, that he is being framed. That he was not guilty of the offense and does not have any problem in the sexual sphere. Therefore, I think it is quite clear to re-examine him now would be a futile gesture for all concerned. He does not want to be re-examined and he waives any right or privilege thereunder.

'Is that right, Mr. Garn?

'THE DEFENDANT: That's correct.

'MR. POWELL: You don't want to be examined by any more doctors?

'THE DEFENDANT: That's correct.

'MR. POWELL: And under the circumstances, in view of the clear record that the defendant is still of the mind that he is not involved, I feel that the Court could at this time impose sentence relying on the record as it is at this time.

'THE COURT: All right.

'Probation is denied.

'Defendant is sentenced to State Prison for the term prescribed by law and remanded to the custody of the Sheriff for transportation to the Department of Corrections and Vacaville is recommended.'

The victim in the present case was 11 years of age. Subsection (c) of section 5501 of the Welfare and Institutions Code provides:

'When a person is convicted of a sex offense involving a child under 14 years of age and it is a felony, the court Shall adjourn the proceeding or suspend the sentence, as the case may be, and shall certify the person for hearing and examination by the superior court of the county to determine whether the person is a mentally disordered sex offender within the meaning of this chapter.' (Emphasis added.)

We can see nothing in this section which authorized the waiver herein attempted. While no case which we have found has held directly that the provisions of section 5501 are not waivable, ¹ we think that the basic purpose of the statute requires a holding that neither defendant nor prosecutor can waive a provision stated in the mandatory terms of subsection (c). In People v. McCracken (1952) 39 Cal.2d 336, 346, 246 P.2d 913, 918, the Supreme Court said: 'It is obvious therefore that the primary purpose of the Legislature was to protect society against the activities of sexual psychopaths (citation), and that it was not intended to make sexual psychopathy a mitigating circumstance.' To the same effect is the discussion of the intent and purpose of the statute in 43 Cal.L.Rev. 766. ² Since the act exists for the protection of society, it follows that its processes must be followed, whether or not a defendant desires to submit. ³

The Attorney General argues that the issue above discussed is not material in the context of the case at bench. In 1965, by an urgency act effective on May 25, 1965 (about six weeks before trial herein), the Legislature had added section 5500.5 to the Welfare and Institutions Code, to provide that persons ineligible for probation were not subject to the Mentally Disordered Sex Offender Act. The Attorney General points out that, under section 1203 of the Penal Code as that section read at the time of trial herein, a defendant was not eligible for probation where he was convicted of a violation of section 288 of the Penal Code with a prior felony conviction, and he argues that that was the situation here.

The record shows that the prior conviction (without which defendant admittedly was eligible for probation) was the result of a plea of guilty entered in a Nevada court to a charge of child molestation. The issue of the prior was raised by defense counsel at the inception of the present trial and before a jury was selected. Trial by jury on the issue of the prior was expressly waived. Defense counsel, relying on the decision in United States ex rel. Durocher v. LaVallee (2 Cir. 1964) 330 F.2d 303, urged that that conviction could not be relied on because defendant was not then represented by counsel and had not intelligently waived the right to counsel. The People introduced a certified copy of Nevada records, showing the fact of defendant's arraignment. plea, sentence and subsequent incarceration. Defendant then testified that he had not been represented by counsel, that he was not advised of his right to counsel, and that he had not knowingly waived counsel. This testimony was not contradicted. The trial court ignored the issue so raised, and also ignored a suggestion by the prosecution that it be allowed time to check the Nevada statutes. ⁴ The court asked a series of questions of defendant, none directed to the issue of representation but directed only to establishing the...