People v. Villegas

• Decision Date: 26 January 1971
• Docket Number: Cr. 18776,C
• Citation: 92 Cal.Rptr. 663,14 Cal.App.3d 700
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Tomas VILLEGAS, Jr., Defendant and Respondent. The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, Tomas VILLEGAS, Jr., Real Party in Interest. iv. 37280.

Page 663

92 Cal.Rptr. 663

14 Cal.App.3d 700

The PEOPLE of the State of California, Plaintiff and Appellant, v. Tomas VILLEGAS, Jr., Defendant and Respondent.

The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, Tomas VILLEGAS, Jr., Real Party in Interest.

Cr. 18776, Civ. 37280.

Court of Appeal, Second District, Division 5, California.

Jan. 26, 1971.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Los Angeles, Head, Appellate Division; Harry B. Sondheim, Deputy Dist. Atty., for appellant and petitioner.

Richard S. Buckley, Public Defender; William Rasmussen, James L. McCormick, Deputy Public Defenders, for respondent and real party in interest.

KAUS, Presiding Judge.

Charged with murder, defendant was found guilty of voluntary manslaughter. The facts indicated that he killed a rival for the affections of his girl friend. The weapon was a screwdriver.

After the court found defendant guilty, he applied for probation. The probation report was apparently favorable in that it disclosed no prior record. At the probation hearing the court first expressed the erroneous view that defendant was eligible for probation (People v. Wynn, 257 Cal.App.2d 664, 676, 65 Cal.Rptr. 210), even without a finding that his was an 'unusual' case within the meaning of what is now the sixth unnumbered paragraph of section 1203 of the Penal Code. ¹ It then announced that it would, nevertheless make a finding 'that there were unusual circumstances in the situation which in any event would even justify probation for most of the matters which I have just listed in that * * *' The deputy district attorney, who was evidently still mulling over the court's previous announcement that the defendant was eligible for probation even if his was not an unusual case, then directed the court's attention to the provision of the fifth paragraph of section 1203 which makes ineligible for probation anyone who 'used or attempted to use a deadly weapon upon a human being in connection with the perpetration of the crime of which he was convicted.' The court studied the Penal Code and then announced: 'Without asking what the District Attorney's position would be in this situation, the Court will revoke its remarks with respect to the unusual circumstances and will make a finding that as a matter of law the offense of voluntary manslaughter is not within the included offenses for that which probation must be denied, and under those circumstances will continue its grant of probation. If the People object, the People may have a right of appeal.'

Defendant was then placed on probation for a period of five years. One of the conditions of probation was that he spend 235 days in the county jail.

The People have not only appealed but have also petitioned for a writ of mandate. We granted the alternative writ.

The People pose two problems: 1. Whether appeal or mandate is the appropriate remedy to review what they submit is an illegal grant of probation; and 2. whether defendant was eligible for probation in the absence of a finding that his was an unusual case and concurrence by the district attorney. The defendant does not deny that the nature of the crime was such, as far as the law is concerned, that probation could only be granted with the concurrence of the district attorney, as required by the sixth unnumbered paragraph, but claims: 1. that procedurally the People are not entitled to review by this court, either by appeal or by way of a writ of mandate; 2. that the provision requiring the concurrence of the district attorney is unconstitutional under the holding of People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993; 3. that the trial court did, in fact, find this to be an unusual case; and 4. that if none of these contentions is valid, the case should be returned to the trial court for a determination whether the court's power under the sixth unnumbered paragraph of section 1203 of the Penal Code should be exercised.

We believe that the order placing defendant on probation is appealable under the provisions of subdivision 6 of section 1238 of the Penal Code. This was the precise holding of People v. Orrante, 201 Cal.App.2d 553, 556--558, 20 Cal.Rptr. 480; followed in People v. Thatcher, 255 Cal.App.2d 830, 831--832, 63 Cal.Rptr. 492. ² Orrante held that where it is the imposition of sentence which is suspended, rather than the execution thereof, the People may appeal under subdivision 6 of section 1238 of the Penal Code, as from an order 'modifying the verdict or finding by reducing the degree of the offense or The punishment imposed.' (People v. Orrante, 201 Cal.App.2d at 556--557, 20 Cal.Rptr. at 482. Emphasis added.)

The People point out that Orrante and Thatcher cannot be reconciled with People v. Superior Court (Guerrero), 199 Cal.App.2d 303, 305, 18 Cal.Rptr. 557, 559, where, in precisely the same procedural setting, the appellate court said: '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. * * *' ³

We believe that Orrante and Thatcher clearly state the better rule. It simply could not have been the intent of the Legislature that there should be a distinction with respect to the appealability of an order which erroneously grants probation, which depends on whether it is the imposition of the sentence or its execution which is suspended.

Defendant's argument that the People are not entitled to any review is based on the proposition that People v. Superior Court (Guerrero), 199 Cal.App.2d 303, 18 Cal.Rptr. 557, is a correct holding on the point that the order is not appealable, but that, to the extent that it holds that mandate is available, it was impliedly disapproved in People v. Superior Court (Howard), 69 Cal.2d 491, 500--501, 72 Cal.Rptr. 330, 446 P.2d 138.

Since, in our view, the proper remedy is appeal, we need not decide whether People v. Superior Court (Guerrero) is at odds with People v. Superior Court (Howard). Strangely, the district attorney appears to feel that somehow People v. Superior Court (Guerrero) was...