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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert LICHENS, Defendant and Appellant.

Cr. 3329.

Decided: April 19, 1962

Halpin, Halpin & Leep, Redding, for appellant. Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., Barry Bunshoft, Deputy Atty. Gen., Sacramento, Albert H. Newton, Jr., Dist. Atty., Yreka, Leonard Conry, Humboldt Dist. Atty., Eureka, for respondent.

Robert Lichens entered a plea of guilty to a charge of assault by means of force and violence likely to produce great bodily injury. The probation officer made a report recommending probation, but the court denied probation and entered judgment sentencing Lichens to state prison. This appeal is from the judgment.

Appellant's sole contention is that the trial court in considering probation listened to and was influenced by hearsay evidence not contained in the probation officer's report and not presented at a judicial hearing.

At the hearing of the probation officer's report the court said:

‘* * * Court has given this case considerable thought. The Court is not particularly concerned, to paraphrase Mr. Halpin, about the people in the street. It did appear in one affidavit. The Court by and large does follow the recommendations of the Probation Officer. However, in this particular case the Court will not. I don't intend to make a speech this date. I feel that Mr. Lichens has shown himself to be a person that has not had a great respect toward law and order between the time of the alleged offense, to which one he pleaded guilty to, and the present time. He was picked up with a loaded gun and out at Dorris, an offense which is perhaps not too grave, one which anyone might do through oversight. Reports came about his attitude there, the Court has observed his attitude at other times.

‘So without further adieu [sic] I will say that in this case I will not follow the recommendation of the Probation Officer. I will appreciate his efforts in that behalf and probation will be denied. The Court is impressed by the telling effect of the prosecutrix under oath. The Court is not impressed with the statement of the defendant to the Probation Officer.

‘Is there any legal cause at this time, Mr. Halpin, why sentence should not be passed?’

After defense counsel stated that the trial judge should disqualify himself from imposing sentence because it was considering matters outside the record the court said:

‘Court after the time of a plea is entitled to draw upon such matters as may come before it. * * *

‘This is not part of this record, nor did it have any impact upon this court. The impact upon this court, Mr. Halpin, is the reading of the Preliminary Examination, under oath, in which the prosecutrix was subjected to, properly, cross-examination, and thereafter the Court studied that to great extent and read a statement—I can direct your attention to it—of the defendant on page 2 of the Probation Officer's report. The Court must necessarily believe something or another. There is even a grave problem, Mr. Halpin, as you no doubt are aware under People against Young—I don't have the citation with me—as to whether or not the defendant is eligible for probation. However, I'm not passing on that. I'm regarding him as being eligible for probation and I'm denying probation and at this time I am prepared to sentence him, unless you have something further to say for the record.’

As stated in People v. Wade, 53 Cal.2d 322, 337–338, 1 Cal.Rptr. 683, 694, 348 P.2d 116, 127; ‘The probation of offenders is provided for in section 1203 of the Penal Code: ‘* * * in every felony case in which the defendant is eligible for probation, before any judgment is pronounced, and whether or not an application for probation has been made, the court must immediately refer the matter to the probation officer to investigate and to report to the court. * * * The probation officer must thereupon make an investigation of the circumstances surrounding the crime and of the prior * * * history of the defendant, must make a written report to the court * * * and must accompany said report with his written recommendations * * * as to the granting or withholding of probation * * *.’ At the time * * * fixed by the court, the court must hear and determine * * * the suitability of probation in the particular case, and in connection therewith must consider any report of the probation officer, and must make a statement that it has considered such report. * * *' (Emphasis added.) Probation is, therefore, a power that may be exercised in the discretion of the court. People v. Hainline, 219 Cal. 532, 534, 28 P.2d 16. But that discretion may not be exercised in an arbitrary or capricious manner. It must be impartial, guided by ‘fixed legal principles, to be exercised in conformity with the spirit of the law.’ * * *'

We think it is clear that the trial judge improperly considered evidence outside of the record. He referred to an incident in connection with a loaded gun and to reports as to appellant's attitude, and also stated that he had observed appellant's attitude at other times. This reference was to matters occurring after the plea of guilty which were not contained in the probation officer's report or in any other part of the record. Appellant was given no opportunity to examine witnesses with reference to these matters. The question here presented was discussed in People v. Giles, 70 Cal.App.2d Supp. 872, at pages 879–880, 161 P.2d 623, at page 626 in which the court in a well-considered opinion stated:

‘In section 1204, Penal Code, we discover the legislature expressly condemning the practice followed by the trial court. That section, referring to circumstances which may either aggravate or mitigate the punishment, states: ‘The circumstances must be presented by the testimony of witnesses examined in open court * * *.’ No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section.' * * *

‘* * * The fact that the hearing is not a trial in the full technical sense and is not governed by the same strict rules of procedure as a trial, does not mean, however, that the facts needed by the court to enable it to perform its duty may be picked up by the judge at the club or on the street. In People v. O'Brien, 1932, 122 Cal.App. 147, 155, 9 P.2d 902, 905, we find this statement: ‘Notwithstanding the fact that it has been decided that the hearing which may be conducted by the trial court for the purpose of determining the degree of the offense ‘is not a trial’ nevertheless the only means by or through which the court is authorized to reach a conclusion in the matter is by the aid of evidence. * * *''

The court concluded at page 884, 161 P.2d at page 629:

‘* * * In undertaking to ascertain facts from which it could determine what sentence should be imposed on the defendant, the trial court was engaged in a judicial proceeding. Such facts as were not supplied by the probation officer's report and by the record of the trial, which had been held, should have been obtained from the lips of witnesses called in open court, in the presence of the defendant. Instead of limiting his search for the facts to these proper sources, the trial judge listened and gave great weight to reports received outside of court, with the result that the judgment entered was prejudicially influenced by these improperly received accusations. For these reasons we reverse the judgment with directions that the defendant be rearraigned for sentence after proceedings conducted in harmony with the principles set forth in this opinion.’

In People v. Neal, 97 Cal.App.2d 668, 218 P.2d 556, and Kuhl v. District Court, 366 P.2d 347 (Mont.), the court condemned the action of the trial court in considering matters outside the record in determining the sentence to be imposed. While each of these cases was concerned with the matter of sentence and not probation, the principle would be the same. Other decisions condemn the practice as being in violation of the fundamental right of a person to be confronted by the witnesses against him. (See State v. Simms, 131 S.C. 422, 127 S.E. 840, and Commonwealth v. Johnson, 348 Pa. 349, 35 A.2d 312–313.)

Respondent does not seriously dispute the principles stated in the cases hereinbefore cited. It argues that the court's action was not an abuse of discretion and that appellant was not prejudiced by the facts outside the record because the court stated that it gave no weight to these facts in reaching its decision on the matter of probation. We are unable to agree with this contention. Judges are no less human than other individuals, and we do not believe that a judge in considering the matter of probation could mention the facts outside the record, which the record in the instant case shows the judge did mention, without being influenced by them. No mention of these facts was made in the report of the probation officer who recommended probation. The conclusion is unescapable that the court in denying probation was influenced to the prejudice of appellant by consideration of facts outside the record which appellant had no opportunity to refute.

The only other point that need be discussed is whether this error can be reviewed. An order denying probation on the merits is not generally reviewable on an appeal from the judgment. But where the denial is based on an erroneous view of the probation law, the order of denial may be reviewed on appeal from the judgment. (People v. Hollis, 176 Cal.App.2d 92, 1 Cal.Rptr. 293.) Since the trial court considered evidence dehors the record, its action may be reviewed on an appeal from the judgment.

For the reasons hereinbefore set forth the judgment is reversed with directions that the defendant be rearraigned for sentence after proceedings in accordance with the views hereinbefore set forth.

SCHOTTKY, Justice.

PEEK, P. J., and PIERCE, J., concur.

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