People v. Webb
| Decision Date | 14 October 1986 |
| Citation | 230 Cal.Rptr. 755,186 Cal.App.3d 401 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Larry Lloyd WEBB, Defendant and Appellant. Crim. 14125. |
John McDougall, Albany, under appointment by the Court of Appeal, for defendant and appellant.
This case poses two questions. The first is whether a supplemental probation report is mandatory upon a remand for resentencing when the defendant is ineligible for probation. Parting company with our brethren in the Fifth District, we hold that it is not. The second is whether defendant can challenge his plea bargain on appeal on the ground that it violates the prohibition of Penal Code section 1192.7. For a variety of reasons we hold that he cannot.
This is the second time defendant Larry Lloyd Webb has been before us on appeal. The first appeal followed defendant's sentence to state prison for 60 years upon his guilty pleas to two counts of forcible rape (Pen.Code, § 261, subd. (2), further undesignated statutory references are to the Penal Code), three counts of forcible oral copulation ( § 288a, subd. (c)), two counts of forcible lewd and lascivious conduct upon a child under the age of 14 ( § 288, subd. (b)), two counts of lewd and lascivious conduct on a child under the age of 14 ( § 288, subd. (a)), with findings that in each offense defendant was personally armed with a deadly weapon ( § 12022.3), and that he had suffered a prior conviction for forcible lewd and lascivious conduct with a child, a serious felony ( § 667, 1192.7, subd. (c)). In our previous opinion we affirmed the judgment of conviction but remanded for resentencing. (People v. Webb (June 6, 1984) 3 Crim. 12857 [nonpub. opn.].) On remand defendant was sentenced to state prison for 59 years. Still dissatisfied, defendant again appeals. In the published portion of this opinion we consider and reject defendant's contentions that the trial court erred in failing to obtain a supplemental probation report and in accepting his plea bargain. We review the remaining contentions in the unpublished part of this opinion, find them unpersuasive and consequently affirm the judgment.
The factual bases for defendant's convictions were fully set forth in our previous opinion and need be only outlined here. This prosecution arose out of the August 5, 1982, sexual attack by defendant against two sisters, Page who was 17-years-old, and Foy who was 13-years-old. Defendant lured the girls to his apartment on a pretext. Page arrived first, whereupon defendant pulled her hair, held a knife to her throat, and threatened to kill her. He forced her to undress and sit with her genital area exposed. He gave her a razor and ordered her to shave her pubic hair. When Page mentioned that her sister would be coming to the apartment defendant bound Page with electrical wire. When Foy arrived defendant held the knife to her throat, forced her to untie Page and forced her to undress and sit with her genital area exposed.
After capturing the girls defendant engaged in a number of violent sexual offenses. He forced Page to perform an act of oral copulation and ordered Foy to watch, advising that she was next. He forced Foy to engage in oral copulation and when she choked he forced Page to repeat As a result of these criminal acts defendant was charged with two counts of forcible rape in violation of section 261, subdivision (2) (Counts VIII and X), three counts of forcible oral copulation in violation of section 288a, subdivision (c) (Counts IV, VI, and VII), two counts of lewd and lascivious conduct on a child under the age of 14 by force or violence in violation of section 288, subdivision (b) (Counts III and XI), two counts of lewd and lascivious conduct on a child under the age of 14 in violation of section 288, subdivision (a) (Counts V and IX), one count of child molestation with a prior conviction for a violation of section 288, a felony under section 647a (Count II), and one count of assault with a deadly weapon in violation of section 245, subdivision (a) (Count I). With the exception of the assault and the child molestation charges, each count further alleged that during the commission of the offense defendant was personally armed with a deadly weapon, a knife, within the meaning of section 12022.3. It was alleged that defendant had suffered a prior conviction for lewd and lascivious conduct upon a child by force, a serious felony within the meaning of sections 667, subdivision (a) and 1192.7, subdivision (c).
an act of oral copulation while he ran his knife along Foy's breasts. Defendant forced Page to bend over and he accomplished an act of rape from behind. He ordered Page to lay on her back and directed Foy to spread Page's legs so that she could watch. He accomplished another act of rape during which he ordered Foy to fondle Page's breasts. When he ejaculated defendant forced the girls to sit on a vanity while he debated whether to kill them. As he did so he ordered Foy to place her finger into her vagina while he called her vulgar names. The girls ran naked from the apartment when defendant's wife arrived home.
Defendant entered into a plea bargain by which he agreed to plead guilty to counts III through XI of the information and to admit the enhancement allegations and to accept a prison term of 60 years. The prosecutor agreed to dismiss counts I and II of the information. In addition, it appeared that there had been previous charges of kidnapping and rape filed against defendant which were dismissed when the victim left town. The victim had been located and agreed to testify, and as part of the bargain the prosecutor agreed not to refile those charges. The prosecutor stated that unless defendant were to receive a 60-year prison sentence the People would not bargain but would try this case and the other matter. The trial court had previously indicated that it would be disposed to impose a sentence of 59 to 65 years, and it agreed to the 60-year sentence as part of the bargain. Defendant entered pleas of guilty to counts III through XI, admitted the enhancement allegations, and was sentenced to 60 years in state prison. On defendant's first appeal we affirmed the judgment of conviction, but remanded the matter for resentencing. On remand defendant was sentenced to 59 years in prison, which the prosecutor accepted as substantially providing the benefit of the People's bargain. Defendant once again appeals.
Section 1203, subdivision (b) provides in relevant part that "in every case in which a person ... is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to the probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment." Although defendant was not eligible for probation, the trial court originally referred the case to the probation officer before it imposed the first sentence. 1 Despite that In People v. Miller (1960) 186 Cal.App.2d 34, at page 37, 8 Cal.Rptr. 578; the trial court considered the original probation report on remand but did not order a current report. The Court of Appeal held that under the circumstances no error was committed, and that the defendant was not prejudiced by the lack of a current report. In People v. Ware (1966) 241 Cal.App.2d 143, at page 146, 50 Cal.Rptr. 252, the defendant was ineligible for probation unless the court were to find it to be an unusual case, and on remand for resentencing the trial court used the original report without referring the case to the probation officer for a current report. The Court of Appeal held that a supplemental report could not have added anything of significance, and that even if a literal reading of Penal Code section 1203 required such a report the defendant was not prejudiced by its absence. In People v. Ford (1967) 253 Cal.App.2d 390, at pages 394 and 395, 61 Cal.Rptr. 329, the defendant was ineligible for probation and the trial court was required to sentence him to the term provided by law. The Court of Appeal found no abuse of discretion in the failure to obtain a supplemental probation report.
referral and the preparation of a probation report before his first sentencing, defendant contends that the trial court committed reversible error in failing, on its own motion, to order the preparation of a supplemental probation report upon remand for resentencing. We begin our analysis of that claim with a review of the few older appellate authorities on the subject.
It was against this judicial background that the landmark case of People v. Rojas (1962) 57 Cal.2d 676, 21 Cal.Rptr. 564, 371 P.2d 300, was decided. There the two defendants were convicted of receiving stolen property and on appeal the Supreme Court reduced the convictions to attempting to receive stolen property. On remand both the defendants and the prosecutor asked the trial court to refer the matter to the probation officer for further investigation but the court refused. The Supreme Court found error. It noted that section 1203 provides that when the defendant is eligible for probation before any judgment the court must immediately refer the matter to the probation officer for investigation and report. From the use of the word "immediately" the court concluded that in the case of a remand a current referral and report is required. (57 Cal.2d at p. 682, 21 Cal.Rptr. 564, 371 P.2d 300.)
Perhaps due to the intricacies of determinate sentencing and the need for more frequent sentencing remands, the issue has once again...
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