People v. Superior Court (Himmelsbach)

Decision Date16 October 1986
Citation186 Cal.App.3d 524,230 Cal.Rptr. 890
PartiesThe PEOPLE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; William Michael HIMMELSBACH, Real Party in Interest. H001779.
CourtCalifornia Court of Appeals Court of Appeals

John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Michael Mintz, Deputy Attys. Gen., San Francisco, for petitioner.

James W. Blackman, Palo Alto, for real party in interest.

AGLIANO, Presiding Justice.

The People petition for a writ of mandate compelling the trial court to vacate its disposition of criminal charges against real party in interest, William Michael Himmelsbach (hereafter defendant). The People contend the trial court (1) based its disposition on an unfounded determination that any prison sentence would constitute cruel and unusual punishment, (2) engaged in impermissible plea bargaining, and (3) circumvented the probation bar of Penal Code section 12311 by its improper application of Penal Code section 654. 1 We conclude extraordinary relief is warranted.

I. Procedural History

The defendant was charged in the information as follows: Count I--second degree burglary ( §§ 459, 460, subd. 2); count II--receiving stolen property ( § 496); count III--entering with intent to commit crime and opening a safe with explosives (burglary with explosives) ( § 464); count IV--possession of explosives with intent to injure ( § 12303.3); count V--possession of explosives ( § 12303); and count VI--possession of explosives with intent to injure ( § 12303.3). Apparently counts I, II, III, and IV arose from the commission of a single burglary, while counts V and VI arose from the possession of explosives at the time of arrest.

At the change of plea hearing, defense counsel announced defendant's intent to plead guilty to counts I, III, IV, V, and VI based upon the disposition which the court had indicated in chambers that morning: probation with a two-year county jail condition. The court explained how it would reach that result. Upon objection by the prosecution, the court stated: "The Court feels that a State Prison sentence imposed upon this particular defendant could well result in serious bodily injury--great bodily injury--to himself or even death should he be placed within the confines of a State Prison and his identification become known, as it most undoubtedly would be. The name is quite distinctive and not one to be lost with the Browns and the Smiths that might be found elsewhere."

Defendant entered pleas of guilty to all counts, except count II. His codefendant entered identical pleas and also admitted a prior conviction within the meaning of section 1203, subdivision (e)(5), which prohibits the grant of probation, absent unusual circumstances, to a person convicted of burglary with explosives who has a prior felony conviction.

Second degree burglary is punishable by imprisonment in the county jail for a term not exceeding one year or in state prison for a term of 16 months, two years or three years. ( §§ 461, subd. 2, 18.) Burglary with explosives is punishable by a term of three, five, or seven years in state prison. ( § 464.) Possession of explosives with intent to injure is punishable by a term of three, five, or seven years in state prison. ( § 12303.3.) Simple possession of explosives is punishable by imprisonment in the county jail for a term not exceeding one year or in state prison for 16 months, two years or three years. ( §§ 12303, 18.)

Violations of sections 12303.3 and 12303 (possession of explosives with intent to injure and possession of explosives) are subject to section 12311. That section states: "No person convicted of a violation of this chapter shall be granted probation, and the execution of the sentence imposed upon such person shall not be suspended by the court."

The trial court sentenced the codefendant to a three-year term of state prison, but did not require defendant to serve any term in state prison despite its express finding that defendant deserved comparable punishment. Avoiding execution of a commitment to state prison, the court did the following: imposed a one-year county jail term on count V (possession of explosives); imposed the lower term but stayed execution of sentence pursuant to section 654 on count VI (possession of explosives with intent to injure) as an offense arising from the same act as count V; granted probation by suspending imposition of sentence with condition of a consecutive one-year term in county jail on count III (burglary with explosives); imposed the lower term but stayed execution of sentence pursuant to section 654 on counts I and IV (second degree burglary and possession of explosives with intent to injure) as offenses arising from the same conduct as count III; and dismissed count II pursuant to section 1385. 2

The court made the following remarks: "The codefendant in this case ... has already been sentenced to state prison for three years by me. This defendant, William Himmelsbach, deserves a similar penalty. There are, however, three factors which constrain me to treat him differently: [p] First is his lack of substantial criminal record, whereas the codefendant had a prior felony conviction. [p] The second is his physical appearance: blond and slender, which would make him the target of sexual abuse in a state prison. [p] Neither of these would stand in the way of a state prison sentence, but the third, when considered in conjunction with the other two, brings me to make a local disposition. That is the fact that he bears the surname of the District Attorney of this county, who is reputed to be a hard-liner on crime and has caused more criminals to go to state prison that [sic] might otherwise have been the case. This distinction would make this defendant the target of revenge and probably result in very serious risk to his person and life. This probability would make a state prison commitment a cruel and unusual punishment, exceeding that which this Court could impose."

II. Propriety of Review by Extraordinary Writ

The People and real party disagree regarding the propriety of writ review. We conclude that writ review is available and appropriate in this instance.

Writ review is ordinarily available where there is no plain, speedy, and adequate remedy in the ordinary course of the law. (Civ.Code, §§ 1085, 1086.) However, the People's ability to obtain extraordinary relief is severely restricted where no right to appeal has been provided by the Legislature. (People v. Superior Court (1968) 69 Cal.2d 491, 497-498, 72 Cal.Rptr. 330, 446 P.2d 138.)

In this case, the stay of execution of sentence pursuant to section 654 is appealable by the People. (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2, 153 Cal.Rptr. 40, 591 P.2d 63; People v. Mendevil (1978) 81 Cal.App.3d 84, 87-88, 146 Cal.Rptr. 65; see § 1238, subd. (a)(5).) However, the People have no right to appeal from the court's acceptance of defendant's pleas or imposition of sentence on counts I, IV, V, and VI. (See § 1238; cf. People v. Rivera (1984) 157 Cal.App.3d 494, 498, 203 Cal.Rptr. 722.) 3

"If the prosecution has not been granted by statute a right to appeal, review of any alleged error may be sought by a petition for writ of mandate only when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused. [Citations.] Mandate is not available to the prosecution for review of 'ordinary judicial error' [citation] or even 'egregiously erroneous' orders [citations] when the order or ruling 'on its face is a timely exercise of a well-established statutory power of trial courts ... from which no appeal is provided in section 1238.' [Citation.]" (People v. Superior Court (Stanley) (1979) 24 Cal.3d 622, 625-626, 156 Cal.Rptr. 626, 596 P.2d 691, fn. omitted.)

In People v. Superior Court, supra, 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138, the Supreme Court discussed but did not define the term "jurisdiction." (Id. at pp. 500-501, 72 Cal.Rptr. 330, 446 P.2d 138.) It noted that five cited decisions " ... applied, to a limited degree, the definition of jurisdiction established by Abelleira v. District Court of Appeal, [ (1941) ] 17 Cal.2d 280, 291 ..., where it was held that a court acts in excess of jurisdiction, insofar as that term is used to indicate the availability of prohibition and certiorari, when its acts exceed the defined power of a court in any instance whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis. [Citation.]" (Id. at p. 500, 72 Cal.Rptr. 330, 446 P.2d 138.) However, the court stated this test would make the People's right to writ review too extensive and emphasized the need for a delicate balancing of competing considerations of preventing harassment of the accused and correcting possible judicial errors. (Id. at p. 501, 72 Cal.Rptr. 330, 446 P.2d 138.) It concluded that " ... proper balancing of these considerations prohibits review by mandate at the request of the People where ... there is a danger of further trial or retrial." (Id. at p. 501, 72 Cal.Rptr. 330, 446 P.2d 691.)

Since that seminal case, courts have generally taken a broad view of "jurisdiction" in the context of a People's petition for writ of mandate. (See e.g., People v. Superior Court (1971) 4 Cal.3d 605, 94 Cal.Rptr. 250, 483 P.2d 1202 [order granting defendant's section 1538.5 motion, which court had no statutory authority to entertain at that time]; People v. Municipal Court (Bonner) (1980) 104 Cal.App.3d 685, 693-695, 163 Cal.Rptr. 822 [order compelling production of police reports where defendant made no showing whatsoever in support of the order]; In re Richard C. (1979) 89 Cal.App.3d 477, 484, 152 Cal.Rptr. 787 [juvenile court order based upon erroneous interpretation of Supreme Court case on point]; ...

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