People v. Keller

• Decision Date: 19 October 1966
• Docket Number: Cr. 5478
• Citation: 54 Cal.Rptr. 154,245 Cal.App.2d 711
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ross Kent KELLER, Defendant and Appellant. Division 2, California
• Court: California Court of Appeals Court of Appeals

Page 154

54 Cal.Rptr. 154

245 Cal.App.2d 711

PEOPLE of the State of California, Plaintiff and Respondent, v. Ross Kent KELLER, Defendant and Appellant.

Cr. 5478.

District Court of Appeal, First District,

Division 2, California.

Oct. 19, 1966.

Nathan S. Smith, San Francisco, for appellant (under appointment of the District Court of Appeal).

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for respondent.

TAYLOR, Justice.

This is the second appeal arising out of defendant's conviction of two counts of selling marijuana, committed on March 5, 1964, in violation of section 11531 of [245 Cal.App.2d 713] the Health and Safety Code. On the prior appeal, we pointed out, in an unpublished opinion, that defendant, having suffered no previous conviction within the meaning of section 11715.6 of the Health and Safety Code, was eligible for probation, and we vacated the judgment for the sole purpose of allowing the court below to hear and act upon defendant's application for probation (People v. Keller, Cal.App., 44 Cal.Rptr. 432, decided May 12, 1965). On July 28, 1965, defendant was brought back before the same judge who had previously sentenced him, and interposed a motion to disqualify the court pursuant to section 170.6 of the Code of Civil Procedure. This motion was denied and the matter continued. On August 27, 1965, the court denied defendant's motion for probation and thereupon sentenced defendant to the state prison for the term prescribed by law. The sentence on the two counts was to run concurrently and credit was given for time already served.

The first contention on appeal is that the trial court erred in denying the motion to disqualify pursuant to section 170.6 of the Code of Civil Procedure. The statute, so far as pertinent, provides: '(2) * * * If the motion is directed to a hearing (other than the trial of a cause), the motion must be made not later than the commencement of the hearing.' However, the section has been interpreted to mean that where the hearing is a part or a continuation of an original proceeding, the motion must be made before the original proceeding is commenced (Jacobs v. Superior Court, 53 Cal.2d 187, 190--191, 1 Cal.Rptr. 9, 347 P.2d 9).

A hearing on probation and sentence, while subsequent in point of time to the trial of the cause, is a part and continuation of the original criminal action, and is not a separate proceeding or hearing within the meaning of section 170.6 of the Code of Civil Procedure (People v. Smith, 196 Cal.App.2d 854, 856, 17 Cal.Rptr. 330). Nor does the interruption necessitated by the appeal operate to constitute the hearing a proceeding separate and apart from the original criminal action. The 'further proceedings' in the lower court ordered by the mandate of this court, amounted to nothing more than a resumption and continuation of the original criminal cause, for the directions merely required the lower court to pronounce judgment after consideration of defendant's motion for probation (People v. Rojas, 216 Cal.App.2d 819, 824, 31 Cal.Rptr. 417).

Defendant argues that the above rule does not apply here since the court was necessarily prejudiced by the knowledge of defendant's assault conviction that was reversed by this court for a violation of the comment rule adopted in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (People v. Keller, 234 Cal.App.2d 395, 44 Cal.Rptr. 432). Both the marijuana and assault cases were tried by the same court. A reversal on appeal does not disqualify a judge nor is it evidence of bias or prejudice (Ryan v. Welte, 87 Cal.App.2d 888, 198 P.2d 351). While the court, having heard the evidence at the original trial, stated at the time of sentencing that defendant was guilty of the assault charge, it dismissed that charge on the district attorney's motion and the record indicates that the assault was not included in the criminal history referred to by the court in justifying the sentence imposed.

There is sound principle behind the well-established rule that a party cannot disqualify, under section 170.6, the judge who heard the original criminal cause from hearing a subsequent supplemental matter (Thompson v. Superior Court, 206 Cal.App.2d 702, 706, 23 Cal.Rptr. 841; People v. Smith, supra, 196 Cal.App.2d 859, 17 Cal.Rptr. 330). Such procedure would make it possible for litigants to gamble on obtaining a favorable decision from one judge and then, if confronted with an adverse judgment, allow them to disqualify him without presenting facts showing prejudice, in the hope of securing a different ruling from another judge in supplementary proceedings involving substantially the same issues (People v. Rojas, supra, 216 Cal.App.2d at 824--825, 31 Cal.Rptr. 417). We conclude that the motion to disqualify the sentencing court was properly denied.

The contention that the life sentence imposed by the trial court for his two counts of violating section 11531 of the Health and Safety Code was cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution, and article I, section 6 of the state Constitution and was without rational basis in comparison to punishment for other narcotic crimes, is better addressed to the Legislature than this court. As we indicated in our prior opinion, the prescribed penalty for sale of marijuana is 'imprisonment in the state prison from five years to life' (Health & Saf.Code, § 11531). The statute further provides that a defendant 'shall not be eligible for release upon completion of sentence, or on parole, or on any other basis until he has served not less than three years.' In People v. Tanner, 3 Cal.2d 279, 298, 44 P.2d 324, 333, the Supreme Court stated: 'Courts are not empowered to enter the field of legislation and to set up their judgments as to questions of policy or expediency as against the findings of the legislative body on matters which are purely legislative.' Quoting from Bailey v. United States, 10 Cir., 74 F.2d 451, the court further stated, 3 Cal.2d at page 298, 44 P.2d at page 333: 'The fixing of penalties for crime is a legislative function. What constitutes an adequate penalty is a matter of legislative judgment and discretion, and the courts will not interfere therewith unless the penalty prescribed is clearly and manifestly cruel and unusual. Where the sentence imposed is within the limits prescribed by the statute for the offense committed, it ordinarily will not be regarded as cruel and unusual (citing authorities.)"

Defendant further argues that the court erred in denying him probation after this court had determined that he was eligible for probation. This contention is based on a misunderstanding of the effect of the prior opinion of this court. The matter was remanded for the sole purpose of allowing the court to hear and act on the application for probation. Probation is not a right but an act of clemency which rests within the discretion of the trial court, whose order granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion (People v. Mancha, 213 Cal.App.2d 590, 592, 29 Cal.Rptr. 72). Discretion imports an individual judgment and an appellate court will not substitute its opinion for that of the trial judge (People v. Miller, 186 Cal.App.2d 34, 36--37, 8 Cal.Rptr. 578). Even if this court disagreed with the determination of the trial judge, we would not disturb that determination unless it manifested an abuse of discretion. Discretion implies the absence of arbitrary determination and the exercise of discriminating judgment within the bounds of reason (People v. Surplice, 203 Cal.App.2d 784, 21 Cal.Rptr. 826)

Defendant next contends that the trial court erred in failing to obtain a current probation report and considering his behavior while incarcerated before pronouncing sentence. We agree. The controlling case is People v. Rojas, 57 Cal.2d 676, at p. 682, 21 Cal.Rptr. 564, at p. 567, 371 P.2d 300, at p. 303, which held '* * * the Legislature intended, with each contemplated pronouncement of judgment and the concurrent determination of whether to grant or deny probation where as accused is otherwise eligible, that a defendant is...