People v. Superior Court In and For Los Angeles County (Guerrero)

• Decision Date: 19 January 1962
• Citation: 199 Cal.App.2d 303,18 Cal.Rptr. 557
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent, Ignacio Guerrero, Real Party in Interest. Civ. 26051.

Page 557

18 Cal.Rptr. 557

199 Cal.App.2d 303

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent Ignacio Guerrero, Real Party in Interest.

Civ. 26051.

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

Jan. 19, 1962.

Rehearing Denied Feb. 6, 1962.

Hearing Denied March 14, 1962.

Stanley Mosk, Atty. Gen., William E. James, Asst.Atty.Gen., William B. McKesson, Dist. Atty., Harry Wood, Deputy Dist. Atty., Los Angeles, Harry B. Sondheim, Deputy Dist. Atty., Pacific Palisades, for petitioner.

Harold W. Kennedy, County Counsel, William E. Lamoreaux, Asst. County Counsel, Los Angeles, for respondent.

Nick N. Markich, Los Angeles, for real party in interest.

Al Matthews, Los Angeles, appearing in behalf of the Criminal Courts Bar Association, Inc., amicus curiae.

SHINN, Presiding Justice.

In Case No. 246193 in the Superior Court of Los Angeles County, Ignacio Guerrero, charged with murder, pleaded guilty to murder of the first degree. Following the filing of a probation report, the court suspended imposition of sentence and granted Guerrero probation, one of the terms thereof being that he serve 150 days in the county jail. The State moved the court to vacate the order granting probation and to impose sentence according to law. The motion was denied, and the State instituted the present proceeding in mandate, seeking annulment of the order and requiring the court to impose sentence upon Guerrero. The relief is sought upon the ground that the trial court was without jurisdiction to grant probation or to do otherwise than impose sentence as for murder of the first degree. Opposition to the petition of the State has been filed by Guerrero and the respondent court. We agree with the contention of the district attorney and the attorney general that the order sought to be annulled was in excess of the court's jurisdiction and void. Although the circumstances of the killing, in which the victim was shot to death, are of no materiality, it may be mentioned that all the elements of first degree murder were present.

Mandate is an appropriate proceeding. The order in question was not an order made after judgment for which an appeal by the People would be allowable under section 1238 of the Penal Code. Since the order is nonappealable it may be attacked by a proceeding in mandate. (Andrews v. Superior Court, 29 Cal.2d 208, 174 P.2d 313; People v. Superior Court, 118 Cal.App.2d 700, 258 P.2d 1087.)

The law with respect to the granting of probation which calls for our consideration is found in section 1203 of the Penal Code. Authority is vested in the court to grant probation except in those cases in which authority is specifically withheld. The question is whether the court is denied the power to grant probation to one convicted by a plea of guilty, or by judgment, of the crime of murder.

The trial court acted upon an interpretation of a revision of section 1203 by Statutes 1957, Chapter 2054, which the court construed as a grant of authority to extend probation to one convicted of murder.

We have set out in the margin the pertinent provisions of the revision in Chapter 2054, effective July 10, 1957. Those provisions are found in two paragraphs. ¹ The paragraph which we designate in the note as paragraph 3 was added to the section. The remainder of the amended section which is involved in our inquiry is set out as paragraph 4. This paragraph re-enacts section 1203 without material change, except by the deletion of the crimes of robbery, burglary and arson, which were made the subject of special treatment in the paragraph we have numbered 3.

As the law stood before paragraph 3 was added, robbery, burglary and arson were included among the offenses, committed under certain conditions, for which probation could not be granted. The other crimes in this group were burglary with explosives, rape with force or violence, arson, murder, assault with intent to commit murder, attempt to commit murder, train wrecking, kidnaping, escape from a state prison.

Generally speaking, probation could not be granted for any of the crimes of this group if (1) in the commission of the crime or at the time of arrest the person was himself unlawfully armed with a deadly weapon, (2) if he used or attempted to use a deadly weapon upon a human being in perpetration of the crime, (3) if he inflicted great bodily injury or torture, or (4) if he had twice been convicted of felony.

There was another group consisting of the above enumerated crimes, also burglary of the first degree, extortion and violation of sections 286, 288 and 288a of the Penal Code. As to this group, it was provided that one prior conviction of felony would bar probation.

By paragraph 3, robbery, burglary (even of the first degree) and arson were specified as crimes for which probation may be granted in unusual cases in the interest of justice in the above conditions (1), (2) and (3). As to the fourth condition, one previous felony conviction was substituted for two convictions. As previously stated, the crimes of robbery, burglary (even of the first degree) and arson were removed from the categories of crimes listed in paragraph 4, for which probation could not be granted.

The trial court construed the clauses in paragraph 3 commencing with 'nor to a defendant' (who used a deadly weapon) and 'nor to one who' (inflicted great bodily injury or torture) as applicable to all crimes, and not merely to robbery, burglary and arson. Thus, in the view of the trial court, it was the intention of the Legislature that there should be no crime, even the crime of murder, for which probation could not be granted in unusual cases. It is argued for the respondent court, and for Guerrero, that these clauses are comprehensive and clearly have application to all crimes, including those listed in paragraph 4.

This interpretation of the legislative intent is erroneous for a number of reasons.

It is clear that if the Legislature had intended to grant the court power to extend probation for all crimes for which it had previously been denied the power, it would have made the exception applicable to all crimes by a clear statement, and would not have singled out the crimes of robbery, burglary and arson as a class of crimes for which special provisions should be made; the exception applicable to unusual cases would have been placed at the beginning of paragraph 4, and there would have been no paragraph 3. It cannot be inferred that the Legislature intended to do indirectly what it refrained from doing directly.

It is a cardinal rule of interpretation that a statute be read as a whole and in a manner that will reconcile and give effect to all its provisions. (Code Civ.Proc § 1858.) Paragraphs 3 and 4 must be read together, bearing in mind that they were intended to set forth a single and complete plan for administration of the powers of the court to grant probation under section 1203.

The interpretation applied by the trial court would bring the provisions of paragraph 3 in direct conflict with those of paragraph 4 as to all crimes listed in paragraph 4. Under paragraph 4, the courts cannot grant probation for the enumerated crimes, committed under certain conditions. No exception is made for unusual cases. If the clauses of paragraph 3, first mentioned, applied to all crimes, probation for murder could be granted under paragraph 3 in an unusual case, whereas it would have to be denied under paragraph 4. This apparent conflict should be avoided, if reasonably possible, and can be avoided by interpreting paragraph 3 as applicable only to robbery, burglary and arson, which, clearly, is the case.

Another reason is that the clauses in question were placed in paragraph 3 merely to make it clear that in unusual cases of robbery, burglary and arson probation may be granted in conditions in which it had theretofore been denied. If the clauses relating to the use of a deadly weapon and the infliction of great bodily injury or torture had been omitted from paragraph 3 there would have been reason to doubt that it was intended that probation should be granted in cases of robbery, burglary or arson under those conditions, since it might also be contended that the use of a deadly weapon or the infliction of great bodily injury or torture would be a bar to probation under the general provisions of paragraph 4, relating to those conditions, upon which we express no opinion.

To be sure, the use of the words 'in the perpetration of the crime of which he was convicted' was unfortunate. Instead, the phrases should have been made to read 'in the perpetration of any one of said crimes of which he was convicted.' That paragraph 3 was intended to relate only to the three named crimes appears...