People v. Rotsell

• Decision Date: 26 January 1971
• Docket Number: Cr. 18210
• Citation: People v. Rotsell, 14 Cal.App.3d 689, 92 Cal.Rptr. 542 (Cal. App. 1971)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Lawrence ROTSELL, Defendant and Appellant.

Page 542

92 Cal.Rptr. 542

14 Cal.App.3d 689

The PEOPLE, Plaintiff and Respondent, v.Robert Lawrence ROTSELL, Defendant and Appellant.

Cr. 18210.

Court of Appeal, Second District, Division 3, California.

Jan. 26, 1971.

Hearing Granted March 26, 1971.

Appeal Dismissed April 29, 1971.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Arnold E. Ogren, Deputy Atty. Gen., for plaintiff-respondent.

ALLPORT, Associate Justice.

Defendant pled guilty to a charge of violation of Penal Code, section 211(robbery) which the court found to be of the second degree.He was sentenced to state prison for the term prescribed by law.A certificate of probable cause (Pen.Code, § 1237.5) was executed and filed.He appeals from the judgment of conviction.It is contended on appeal that defendant was improperly sentenced to state prison since his guilty plea was induced by agreement among all concerned whereby he would be referred to the California Rehabilitation Center (CRC) for diagnostic study and for treatment if such were found warranted by the director of the center.

The record discloses that at the time of acceptance of defendant's plea of guilty, such an agreement was in existence.The People do not dispute this fact.The minute order of January 26, 1970, recites in part: 'that it has been represented to defendant that the Court will consider referring defendant for the California Rehabilitation Program.'This minute order is amplified by oral statements of the district attorney and the trial court made at this same time.On February 16, 1970, defendant was so referred pursuant to SECTION 3051 OF THE WELFARE AND INSTITUTIONS CODE¹.Admittance to the center was refused by the director upon the ground that defendant's conviction of robbery rendered him ineligible for the program under section 3052.²The district attorney then agreed to concur with the court's reference to the center to enable commitment of defendant in the program under the 'unusual case' provision of section 3051³ notwithstanding section 3052.A second reference to the center was then made.The district attorney thereafter refused to concur in the reference.No reason for the refusal is disclosed by the record.The court then discontinued efforts to have defendant accepted by the center and sentenced him to state prison recommending narcotic treatment at Vacaville or some other suitable institution.

In an effort to obtain affirmance the People simply argue that, since defendant did not move to change his plea under Penal Code, section 1018, ⁴ it was proper for the trial court to find him guilty.This argument is without significance since defendant seeks neither to change his plea nor to abort his conviction but only attacks the validity of the sentencing procedures whereby he ended up in state prison without legal reference to the rehabilitation program.On appeal from a judgment of conviction we may review the propriety of the sentence.(People v. Tokich, 128 Cal.App.2d 515, 519, 275 P.2d 816;People v. Perkins, 147 Cal.App.2d 793, 797, 305 P.2d 932.)We agree with defendant's argument that this court'should either require the District Attorney to sign the concurrence contemplated by Section 3051 or dispense with the requirement * * *.'By analogy to the reasoning of the Supreme Court in the recent cases of People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993andPeople v. Clark, 3 Cal.3d 97, 89 Cal.Rptr. 253, 473 P.2d 997, we hold that the portion of section 3051 requiring concurrence by the district attorney as a prerequisite to a defendant's being accepted by the California Rehabilitation Center as an 'unusual case,' is an unconstitutional restraint upon the exercise of judicial function.Reference to the CRC is an integral part of the sentencing procedure which involves a large measure of judicial discretion.In Tenoriothe Supreme Court said at pages 94 and 95, 89 Cal.Rptr. at pages 252, 253, 473 P.2d at pages 996, 997: 'When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature.Just as the fact of prosecutorial discretion prior to charging criminal offense does not imply prosecutorial discretion to convict without a judicial determination of guilt, discretion to forego prosecution does not imply discretion to sentence without a judicial determination of those factors which the Legislature has never denied are within the judicial power to determine and which relate to punishment.The judicial power is compromised when a judge, who believes that a...