People v. Godfrey, Cr. 28137

• Decision Date: 19 June 1978
• Docket Number: Cr. 28137
• Citation: 147 Cal.Rptr. 9,81 Cal.App.3d 896
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Lynn Robert GODFREY, Defendant and Respondent.

Page 9

147 Cal.Rptr. 9

81 Cal.App.3d 896

The PEOPLE of the State of California, Plaintiff and Appellant, v. Lynn Robert GODFREY, Defendant and Respondent.

Cr. 28137.

Court of Appeal, Second District, Division 2, California.

June 19, 1978.

As Modified July 17, 1978.

John K. Van De Kamp, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head, Appellate Division, and Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant.

Jeffrey M. Levy, San Gabriel, for defendant and respondent.

BEACH, Associate Justice.

PROCEDURAL BACKGROUND:

Lynn Godfrey was charged by information with violation of Health & Safety Code section 11352, subdivision a, and one prior felony conviction. ¹ The People agreed not to prove the prior conviction, ² and defendant pleaded guilty to violation of Health & Safety Code section 11352, subdivision a. ³

At the time for sentencing, the trial court on its own motion found defendant guilty of violation of Health & Safety Code section 11350. The People objected to the reduction of the charge. Defendant was put on five years' probation with conditions including that the first six months be spent in county jail. The People appealed from the "order . . . reducing defendant's conviction to a lesser included offense of possession of heroin in violation of Section 11350 of the Health and Safety Code." The People's appeal was filed purportedly pursuant to Penal Code section 1238(a)(6) to which the People specifically referred in their brief on appeal. The defendant/respondent did not raise the issue of appealability but argued solely on the merits that the trial court had authority to find defendant guilty of a lesser offense than that to which he pleaded guilty. We heard the matter and rendered and filed our decision for publication, which was originally reported at 64 Cal.App.3d 348, 134 Cal.Rptr. 479. Thereafter the Supreme Court granted hearing thus vacating our decision. Subsequent to the granting of hearing the Supreme Court rendered its decision in the case of People v. Drake, 19 Cal.3d 749, 139 Cal.Rptr. 720, 566 P.2d 622, and thereafter retransferred this matter to this court "for reconsideration in the light of People v. Drake (1977) 19 Cal.3d 749, 139 Cal.Rptr. 720, 566 P.2d 622."

CONTENTIONS ON APPEAL:

The People contend that the trial court exceeded its jurisdiction in reducing the offense. Respondent, however claims that the trial court exercised sentencing discretion in compliance with the terms of the plea bargain. By way of supplemental briefs relative to reconsideration People further argue that the matter is appealable and in the alternative that if not appealable the matter is reviewable as a petition for "writ of (mandate) error." ⁴

DISCUSSION:

1. Appealability.

Unlike the posture of this matter when previously before us, the Supreme Court's direction to us upon the retransfer immediately presents the question of whether the instant matter is appealable by the People. Penal Code section 1238 lists the matters from which the People may appeal. The parts of the section with which we are concerned read as follows: "(a) An appeal may be taken by the people from any of the following: . . . (5) An order made after judgment, affecting the substantial rights of the people. (6) An order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed." We can immediately dismiss as inapplicable here subsection (5). Although the order most assuredly affects the substantial rights of the People, the order was not made after judgment but before. There was no judgment rendered when the plea was first made. The trial court "found" the defendant guilty of the lesser offense prior to the imposition of any sentence or rendition of any judgment.

In People v. Drake, supra, 19 Cal.3d 749, 139 Cal.Rptr. 720, 566 P.2d 622 (hereinafter Drake ), after finding defendant guilty of robbery in the first degree the trial court upon denial of motion for new trial modified its earlier finding and found defendant guilty of grand theft. Upon appeal by the People, Drake held that the People may not appeal a trial court order made under the authority of Penal Code section 1181(6). The court in Drake discusses the issue of appealability by the People explaining that " ' . . . except under certain limited circumstances the People shall have no right of appeal in criminal cases'. (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 497, 72 Cal.Rptr. 330, 446 P.2d 138, 143.) . . . "

In Drake the trial court purported to act under the statutory authority of Penal Code section 1181(6). The propriety of the court's act and whether it was constitutional were questions left unaddressed by the Supreme Court in Drake because it held that the order itself was not reviewable on appeal nor by petition for writ of mandate. But in contrast, at bench the act of the trial court is not authorized by nor is there any evidence in the record that the trial court purported to act under the authority of Penal Code section 1181(6) or any other statute. For that matter the record fails to disclose any authority for the act of the trial court. Our independent research reveals no case, statutory, or constitutional authority for what the trial court did here. However, the factual and procedural differences between Drake and the present enigmatic matter afford no basis for appeal at bench. We cannot reach a different result than was reached in People v. Drake, with respect to the question of appealability by the People. As in Drake the ultimate effect of the trial court's action here was a reduction to a lesser offense. Here, similar to and in accordance with the position taken by the court in Drake, whether the lesser offense is or is not truly a lesser included offense need not be resolved. The issue of appealability does not depend in any way on that question or its answer. Rather we must interpret the statute, Penal Code section 1238(a), strictly. "On its face, the language of subsection 6 provides only for appeals from rulings which result in a reduction of the degree of the offense specified in the original verdict or finding, not from rulings which result in reduction to lesser included offenses." (Emphasis in original.) (Drake, supra, 19 Cal.3d at p. 754, 139 Cal.Rptr. at p. 722, 566 P.2d at p. 624.) Similarly here the finding at bench is not a reduction of the degree of any offense. This language of Drake affords us no choice but to conclude that even after a plea any finding of a lesser crime, as made in this case, whether or not justified by the facts and whether or not erroneously reached, with or without common law, statutory, or constitutional authority is not reviewable on appeal under Penal Code section 1238(a)(6). As the concurring opinion in Drake explains, "The trial court's action herein may perhaps be characterized as reducing 'the degree of the offense or the punishment imposed' within the meaning of section 1238, subdivision (a) subsection (6) of the Penal Code. Nonetheless, there is an unsatisfactory and imprecise meshing of the statutory language and procedural record before us. If a gap was unintentionally created by the Legislature in the pattern of criminal appeals, it is better filled by legislative attention than by judicial ingenuity." (Drake, supra, 19 Cal.3d at p. 759, 139 Cal.Rptr. at p. 725, 566 P.2d at p. 627.)

The fact that the act of the trial court was without authority as we have expressed, and thus was an act in excess of the trial court's jurisdiction in itself cannot enlarge the right of appeal by the People. Drake directs a strict and limited reading of the statute allowing appeal.

The argument is made in the People's Brief on the Rehearing upon Reconsideration that the trial court's order is possibly appealable under Penal Code section 1238(a)(6), if not under subsection (5), as an order modifying the finding by reducing "the punishment imposed." Drake forecloses that argument also, because here as in Drake :

"The simple rebuttal to the contention is that when the court acted here sentence had not yet been pronounced and hence there was no existing 'punishment imposed' subject to reduction.

"Of course, in general the modification of a finding to a lesser included offense may have the effect of reducing the potential punishment, although that result does not necessarily follow. But the code refers to actual punishment imposed. To hold that any order which might have an effect on eventual punishment is appealable under subsection 6 would distort both the language and the structure of the statute. . . . " (Drake, supra, 19 Cal.3d at p. 756, 139 Cal.Rptr. at p. 723, 566 P.2d at p. 625.)

2. Reviewability by extraordinary writ.

In the matter at bench the act of the trial court differs from that in Drake in one important respect. The order in Drake was made under the purported authority of Penal Code section 1181(6). That statute authorized the court to act. Thus in Drake even if finding the defendant guilty of a lesser offense may not have been warranted under the facts, or the "lesser offense" truly may not have been a lesser included offense, the trial court was prima facie acting within its statutory authority and "jurisdiction." However, here the act at bench is clearly without any authority, statutory or otherwise, and appears completely in excess of the court's constitutional power.

The few statutes that authorize the court to find the defendant guilty of lesser crimes than charged do not authorize what was done here. By way of example, Penal Code section 1159 provides that:

"The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense."

That section, however, is found in Title 7, ("Of Proceeding After the Commencement of the Trial and Before Judgment") and chapter 4 ("The...