People v. Warner

• Decision Date: 01 March 1978
• Docket Number: Cr. 19662
• Parties: , 574 P.2d 1237 The PEOPLE, Plaintiff and Appellant, v. John Mertz WARNER, Defendant and Respondent.
• Court: California Supreme Court

Page 885

143 Cal.Rptr. 885

20 Cal.3d 678, 574 P.2d 1237

The PEOPLE, Plaintiff and Appellant, v. John Mertz WARNER, Defendant and Respondent.

Cr. 19662.

Supreme Court of California, In Bank.

March 1, 1978.

Rehearing Denied March 30, 1978.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and William G. Prahl, Deputy Attys. Gen., John M. Price, Dist. Atty., and Arjuna T. Saraydarian, Deputy Dist. Atty., for plaintiff and appellant.

Jerome S. Stanley and Christopher H. Wing, Sacramento, for defendant and respondent.

Nathaniel S. Colley, Kenneth M. Wells, Public Defender, and John F. Moulds, III, Sacramento, as amici curiae on behalf of defendant and respondent.

CLARK, Justice.

The People appeal from an order granting defendant probation following conviction upon his plea of guilty to commission of a lewd and lascivious act upon a child under the age of 14 years. (Pen.Code, § 288.) ¹ The People contend that the trial court abused its discretion by granting defendant probation. We agree and reverse the order.

In February 1975 defendant was charged with a violation of section 288 and with three violations of section 288a (oral copulation). After plea bargaining (see § 1192.5), defendant pleaded guilty to the section 288 violation and the remaining charges were dismissed on the People's motion.

The court adjourned criminal proceedings and instituted proceedings to determine whether defendant was a mentally disordered sex offender. (See Welf. & Inst.Code, § 6300 et seq.) Three psychiatrists Dr. Whipple, Dr. Lyons and, after their reports conflicted, Dr. Galioni were appointed to examine defendant and report on his condition. (Welf. & Inst.Code, § 6307.) Following the doctors' examinations and the filing of their reports the court found that defendant was a mentally disordered sex offender but that he could not benefit from care and treatment in a state hospital, and ordered that he be arraigned for sentencing.

Criminal proceedings being resumed, defendant was sentenced to the term prescribed by law. However, over the prosecutor's objection, the court suspended execution of sentence and ordered defendant placed on probation for five years on condition that he not be in the presence of children below the age of 15 years without responsible adult supervision and that he participate in a psychiatric treatment program approved by the probation officer.

The conditions under which probation may be granted are statutorily defined. "If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be subserved by granting probation to the person, it may place him on probation." (§ 1203, subd. (a).)

The trial judge has broad discretion in determining whether the statutory conditions are satisfied. (People v. Wilson (1973) 34 Cal.App.3d 524, 527, 110 Cal.Rptr. 104.) This discretion, however, is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. (People v. Russel (1968) 69 Cal.2d 187, 194, 70 Cal.Rptr. 210, 443 P.2d 794; Bailey v. Taaffe (1866) 29 Cal. 422, 424.) Discretion is abused when granting probation "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 579, 534 P.2d 65, 67; People v. Russel, supra.) That, as we shall explain, is what happened here.

When an abuse of discretion in granting or denying probation is claimed, it is not sufficient to answer as defendant does here that the trial court followed the recommendation made by the probation officer. ² By so saying we do not intend to denigrate the role of the probation officer. The Legislature clearly assigned an important role to him when it provided that a probation report, including recommendations, is to be prepared in every felony case in which the defendant is eligible for probation and, further, that the court must "consider" the report, stating for the record that it has done so. (§ 1203.) However, having considered them, the court "may reject in toto the report and recommendation of the probation officer." (People v. Lippner (1933) 219 Cal. 395, 403, 26 P.2d 457, 460; see People v. Ozene (1972) 27 Cal.App.3d 905, 915, 104 Cal.Rptr. 170; People v. Henderson (1964) 226 Cal.App.2d 160, 165, 37 Cal.Rptr. 883.) "The primary function served by the probation report required by section 1203 is to assist the court in determining an appropriate disposition after conviction." (People v. Edwards (1976) 18 Cal.3d 796, 801, 135 Cal.Rptr. 411, 415, 557 P.2d 995, 999, italics added.) In the final analysis that determination is a matter of judgment for the court, not the probation officer. (People v. Lippner, supra.) ^2a The probation officer is to make his report and recommendations based upon an investigation of the circumstances surrounding the crime and the prior record and history of the defendant. (§ 1203.) We shall review these factors, as disclosed by the probation report and by other materials properly before the court, to determine whether they support the conclusion that there are "circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be subserved by granting probation" to defendant.

THE CIRCUMSTANCES SURROUNDING THE CRIME

Defendant pleaded guilty to committing a lewd or lascivious act upon a child under the age of 14 years. (§ 288.) Section 288 encompasses a wide range of culpable behavior. (In re Rodriguez (1975) 14 Cal.3d 639, 647, 122 Cal.Rptr. 552, 537 P.2d 384.) Had defendant violated the statute in a relatively minor manner (see, e. g., People v. Epperson (1935) 7 Cal.App.2d 125, 45 P.2d 359 (touching a young girl's breasts)) on a single occasion with a single victim such circumstances would be mitigating. However, defendant violated the statute in a most culpable manner orally copulating young boys and by his own admission he did so repeatedly for a year with at least two victims. All that can be said in his favor is that he did not use violence. In conclusion, the surrounding defendant's crime clearly weighed heavily against probation.

DEFENDANT'S PRIOR RECORD

Defendant has three prior felony convictions each of which was based on oral copulation of young boys. Defendant acknowledged these prior convictions in his interviews with the psychiatrists; they were not, however, formally alleged in the information and no findings were made thereon. ³

Defendant was first convicted and sentenced to prison in South Dakota in 1952. He served 6 years of a 10-year term before the supreme court of that state ordered his release because he had not been informed of his right to court-appointed counsel at trial. (State rel. Warner v. Jameson (S.D.1958) 77 S.D. 340, 91 N.W.2d 743.) In 1960 defendant was convicted in California of violations of sections 288 and 288a and was confined first at a state hospital and then in prison. He was released on parole in 1964 and was discharged from parole in 1966. In that same year defendant was again convicted of violation of section 288. He was sent to prison, released on parole in 1972, and discharged therefrom in 1974. It was during this latest period of parole that he began committing the offenses culminating in the present conviction.

The reports also reveal that while released on bail pending trial in this case, defendant was arrested for committing another act of oral copulation in violation of section 288a. Charges flowing from that arrest were to be dismissed pursuant to the plea bargain in the present case.

We will not belabor the obvious. One can scarcely imagine a record less appropriate to probation.

OTHER FACETS OF DEFENDANT'S HISTORY

As used in section 1203, "history" is a catchall term used to refer to the multitude of factors, in addition to the circumstances surrounding the crime and the defendant's prior record, which properly may be considered in determining whether the defendant should be granted probation. Defendant relies on two such factors as supporting the grant of probation to him. 1. Since his release from prison in 1972 defendant allegedly has embarked on a program of self-rehabilitation. 2. Of the three psychiatrists appointed to examine defendant pursuant to the mentally disordered sex offender proceedings, two were of the view that defendant would be more likely to be rehabilitated under a supervised outpatient psychiatric program than in an institution, whether a hospital or a prison.

1.

In support of his claim of rehabilitation defendant alleges that he has taken part in community social activities and formed new associations; that he has attended a state university for two years and is motivated and able to achieve professional status as a sociologist; and that he has responsibly performed in his regular employment. These allegations are not supported by the record.

Participation in community social activities and formation of new associations. As to the latter, defendant was a newcomer to the community to which he was paroled. Therefore, it was inevitable, and not a matter for either praise or blame, that he would form new associations. Defendant's only "community social activity," so far as the record indicates, was an event called "a walk for development." Defendant's involvement in this activity certainly did not demonstrate "self-rehabilitation" for he used it as an occasion to meet the children he eventually molested. Indeed, it was "community social activity" of this sort for which defendant was first committed to prison 25 years ago when he sexually abused youngsters in the Boy Scout troop of which he was the leader.

University attendance and aspiration to become a sociologist. The...