People v. Zikorus

• Decision Date: 29 December 1983
• Docket Number: Cr. 14884
• Citation: 150 Cal.App.3d 324,197 Cal.Rptr. 509
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Martin ZIKORUS, Defendant and Appellant.

Page 509

197 Cal.Rptr. 509

150 Cal.App.3d 324

PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Martin ZIKORUS, Defendant and Appellant.

Cr. 14884.

Court of Appeal, Fourth District, Division 2, California.

Dec. 29, 1983.

[150 Cal.App.3d 327] James F. Spagnole, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Keith I. Motley, and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KENNEDY, Associate Justice. ^*

Defendant pleaded guilty in the Riverside Municipal Court to two violations of Penal Code section 288, subdivision (a), (lewd and lascivious conduct with a child). The offenses occurred on September 13, 1982 and October 4, 1982. His case was certified to the Superior Court and he was sentenced to prison on February 24, 1983. Defendant challenges the procedures employed at his sentencing.

The offenses were both committed on a twelve year old female victim who was thirteen by the time of sentencing. Due to the nature of the offense, the sentencing proceedings were conducted in chambers with defendant's express consent. Present were the defendant, his attorney, the district attorney, the victim and her mother. The proceedings were reported. In imposing sentence, the written material considered by the court included the original probation report, defense counsel's "Statement of Facts in Mitigation and for Probation", a probation memorandum containing information from the defendant's mother and from his common-law wife, three character letters from friends of the defendant, a supplemental probation report, and a report by Dr. Harvey Oshrin regarding his psychiatric evaluation of the defendant.

Oral information was presented in chambers and was considered by the court, but oaths were not administered. In inviting participation from the victim and her mother, the court stated he felt compelled by law and by a concern for the victim's emotional or mental trauma. The victim said nothing, but she nodded in the affirmative when the court inquired whether she was receiving counseling or psychotherapy. The victim's mother commented to the court regarding the defendant's relationship with his family, his family's lack of dependence on the defendant for financial support, his drug usage, and her opinion that the defendant's employer was a poor character reference.

Defendant contends:

1. Allowing the district attorney and the victim's mother to comment violated Penal Code section 1191.1.

2. The conduct of the district attorney and the victim's mother violated his due process rights.

3. He was denied effective assistance of counsel by his attorney's failure to request either a continuance or an opportunity to cross-examine the mother.

I. Penal Code section 1191.1 ¹

Section 1191.1 was enacted on June 8, 1982 as part of an initiative measure entitled "The Victims' Bill of Rights". It was enumerated section 6 of Proposition 8. Proposition 8 applies only to crimes committed after June 9, 1982, its effective date. (People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149.) The crimes to which defendant pleaded guilty took place in September and October of 1982. Consequently, Proposition 8 (§ 1191.1) applies. As there are no reported cases dealing with Penal Code section 1191.1, its application here poses a case of first impression.

Defendant contends that Penal Code section 1191.1 imposes a limitation on whose views may be considered by the sentencing court. In defendant's opinion, section 1191.1 precludes the court from considering information except from the victim. Accordingly, he contends, the court erred in allowing the mother to speak. Such a construction, in our view, is unnecessary, unwise, and illogical.

Penal Code section 1191.1, on its face, creates certain statutory rights for victims of crime:

(1) The right to attend sentencing proceedings,

(2) The right to notice from the probation officer of all sentencing proceedings, and

(3) The right "to reasonably express his or her views concerning the crime, the person responsible, and the need for restitution."

The section also imposes two duties upon the sentencing court:

(1) The duty to consider the statements of the victim, and

(2) The duty to state whether the defendant "would pose a threat to public safety if granted probation."

In determining whether the statute was intended to eliminate existing sentencing procedures and to create new ones, we are mindful of well-established principles of statutory construction. The court should ascertain the intent of the legislature (or, as here, the voters) so as to effectuate the purpose of the law. (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 127 Cal.Rptr. 122, 544 P.2d 1322.) It is the duty of the courts to interpret statutes so as to make them workable and reasonable. (Regents of University of California v. Superior Court (1970) 3 Cal.3d 529, 91 Cal.Rptr. 57, 476 P.2d 457.) When a statute is susceptible of different constructions, one leading to absurdity and the other consistent with justice and common sense, the latter will be adopted. (Schulz v. Superior Court (1977) 66 Cal.App.3d 440, 136 Cal.Rptr. 67.)

Unless expressly provided, statutes should not be interpreted to alter the common law, and should be construed so as to avoid conflict with common law rules. (Saala v. McFarland (1965) 63 Cal.2d 124, 45 Cal.Rptr. 144, 403 P.2d 400; (Dry Creek Valley Assn. v. Board of Supervisors (1977) 67 Cal.App.3d 839, 135 Cal.Rptr. 726.) A statute will be construed in light of common law decisions, unless its language " 'clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning a particular subject matter ....' [Citations.]" (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 815, 119 Cal.Rptr. 858, 532 P.2d 1226.) There is a presumption that a statute does not, by implication, repeal the common law. Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 74 P.2d 252. Repeal by implication is recognized only where there is no rational basis for harmonizing two potentially conflicting laws. (Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 128 Cal.Rptr. 673, 547 P.2d 449.)

The history of the statute, legislative debates, committee reports, or statements to the voters in the case of initiative and referendum measures, may also be considered in ascertaining legislative intent. (Noroian v. Department of Administration (1970) 11 Cal.App.3d 651, 655, 89 Cal.Rptr. 889.) To ascertain the intent of the electorate it is proper to consider the official statements made to the voters in connection with propositions of law they are requested to approve or reject. (Diamond International Corp. v. Boas (1979) 92 Cal.App.3d 1015, 1034, 155 Cal.Rptr. 616.)

With these principles in mind, we turn to our analysis of Penal Code section 1191.1. Penal Code section 1191.1 was adopted as part of an initiative measure, Proposition 8, by the voters of California on June 8, 1982. Proposition 8 was entitled "The Victims' Bill of Rights." ² It is clear that the main thrust of the statute was to expand the rights of victims, not to restrict the scope of judicial inquiry into sentencing alternatives. In the Analysis by the Legislative Analyst which was distributed in the ballot pamphlets to all voters, the voters were told (at page 55):

"Under existing law, statements of victims or next of kin are requested for various reports which are submitted to the court. In many cases, parole boards are not required to notify victims or next of kin about hearings.

"This measure would require that the victims of any crimes, or the next of kin of the victims if the victims have died, be notified of (1) the sentencing hearing and (2) any parole hearing (if they so request) involving persons sentenced to state prison or the Youth Authority. During the hearings, the victim, next of kin, or his or her attorney would have the right to make statements to the court or hearing board. In addition, this measure would require the court or hearing board to state whether the convicted person would pose a threat to public safety if he or she were released on probation or parole."

From the foregoing, it is clear that the Legislative Analyst did not expect that section 6 would restrict a sentencing court to considering only the statements of the victim in imposing judgment.

In all of the public dialogue prior to the passage of Proposition 8, it was never contended that the measure was intended to reduce the class of people entitled to be heard at sentencing. Prior to the enactment of Proposition 8, judges had the power to listen to victims, but had no duty to do so. The clear purpose of Proposition 8, as declared by its title ("The Victims' Bill of Rights") was to mandate a previously optional procedure; to require the judge to listen to and consider the views of the victim. We find nothing in that mandate which is inconsistent with pre-existing law which requires a sentencing judge to consider all relevant facts, not just those presented by the victim. (See People v. Betterton (1979) 93 Cal.App.3d 406, 155 Cal.Rptr. 537.) Penal Code section 1203, subdivision (b) requires "In every case in which a person is convicted of a felony and 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 ...." A sentencing court may consider all reliable information " 'relative to the circumstances of the crime and to the convicted person's life and characteristics.' " (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220.)

Among the factors considered by the court below were a psychiatric report submitted by the defendant,...