The PEOPLE, Plaintiff and Respondent, v. Robert Lawrence ROTSELL, Defendant and Appellant.
Defendant pled guilty to a charge of violation of Penal Code, section 211 (robbery) which the court found to be of the second degree. He was sentenced to state prison for the term prescribed by law. A certificate of probable cause (Pen.Code, § 1237.5) was executed and filed. He appeals from the judgment of conviction. It is contended on appeal that defendant was improperly sentenced to state prison since his guilty plea was induced by agreement among all concerned whereby he would be referred to the California Rehabilitation Center (CRC) for diagnostic study and for treatment if such were found warranted by the director of the center.
The record discloses that at the time of acceptance of defendant's plea of guilty, such an agreement was in existence. The People do not dispute this fact. The minute order of January 26, 1970, recites in part: ‘that it has been represented to defendant that the Court will consider referring defendant for the California Rehabilitation Program.’ This minute order is amplified by oral statements of the district attorney and the trial court made at this same time. On February 16, 1970, defendant was so referred pursuant to section 30511 of the Welfare and Institutions Code. Admittance to the center was refused by the director upon the ground that defendant's conviction of robbery rendered him ineligible for the program under section 3052.2 The district attorney then agreed to concur with the court's reference to the center to enable commitment of defendant in the program under the ‘unusual case’ provision of section 30513 notwithstanding section 3052. A second reference to the center was then made. The district attorney thereafter refused to concur in the reference. No reason for the refusal is disclosed by the record. The court then discontinued efforts to have defendant accepted by the center and sentenced him to state prison recommending narcotic treatment at Vacaville or some other suitable institution.
In an effort to obtain affirmance the People simply argue that, since defendant did not move to change his plea under Penal Code, section 1018,4 it was proper for the trial court to find him guilty. This argument is without significance since defendant seeks neither to change his plea nor to abort his conviction but only attacks the validity of the sentencing procedures whereby he ended up in state prison without legal reference to the rehabilitation program. On appeal from a judgment of conviction we may review the propriety of the sentence. (People v. Tokich, 128 Cal.App.2d 515, 519, 275 P.2d 816; People v. Perkins, 147 Cal.App.2d 793, 797, 305 P.2d 932.) We agree with defendant's argument that this court ‘should either require the District Attorney to sign the concurrence contemplated by Section 3051 or dispense with the requirement * * *.’ By analogy to the reasoning of the Supreme Court in the recent cases of People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993 and People v. Clark, 3 Cal.3d 97, 89 Cal.Rptr. 253, 473 P.2d 997, we hold that the portion of section 3051 requiring concurrence by the district attorney as a prerequisite to a defendant's being accepted by the California Rehabilitation Center as an ‘unusual case,’ is an unconstitutional restraint upon the exercise of judicial function. Reference to the CRC is an integral part of the sentencing procedure which involves a large measure of judicial discretion. In Tenorio the Supreme Court said at pages 94 and 95, 89 Cal.Rptr. at pages 252, 253, 473 P.2d at pages 996, 997: ‘When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature. Just as the fact of prosecutorial discretion prior to charging criminal offense does not imply prosecutorial discretion to convict without a judicial determination of guilt, discretion to forego prosecution does not imply discretion to sentence without a judicial determination of those factors which the Legislature has never denied are within the judicial power to determine and which relate to punishment. The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise. * * * Clearly, analogies to judicial sentencing discretion and the Adult Authority powers limited thereby—both of which must relate the facts of individual cases to competing individual and societal interests—cannot justify vesting in a partial advocate, the prosecutor, the power to prevent the exercise of both judicial discretion and Adult Authority expertise.’ It appears that this logic and reasoning applies with equal force to the sentencing of a defendant where a discretionary referral to the CRC is involved. A partial advocate, in this case the prosecutor, should not possess the power arbitrarily and effectively to prevent the exercise of judicial discretion thereby depriving a defendant of potential benefits to be derived from an exposure to the rehabilitory expertise available under this program. This is particularly true if rehabilitation is to continue as a part of the philosophy employed by the courts in dealing with individuals convicted of crime. The trial court's final recommendation of defendant to Vacaville for narcotic treatment emphasizes the rehabilitory aspects of the instant case.
The judgment (sentence) is reversed with directions to again refer defendant to the CRC in accordance with the views expressed herein.
FN1. Welf. & Inst.Code, § 3051 reads in part as follows: ‘Upon conviction of a defendant for any crime in any superior court, if it appears to the judge that the defendant may be addicted to by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics he shall adjured the proceedings or suspend the imposition of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment and rehabilitation facility unless, in the opinion of the judge, the defendant's record and probation report indicate such a pattern of criminality that he does not constitute a fit subject for commitment under this section.’. FN1. Welf. & Inst.Code, § 3051 reads in part as follows: ‘Upon conviction of a defendant for any crime in any superior court, if it appears to the judge that the defendant may be addicted to by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics he shall adjured the proceedings or suspend the imposition of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment and rehabilitation facility unless, in the opinion of the judge, the defendant's record and probation report indicate such a pattern of criminality that he does not constitute a fit subject for commitment under this section.’
2. Welf. & Inst.Code, § 3052 reads in part as follows: ‘Sections 3050 and 3051 shall not apply to persons convicted of, or who have been previously convicted of * * * robbery * * *.’
3. Welf. & Inst.Code, § 3051 reads in part as follows: ‘In unusual cases, wherein the interest of justice would best be served, the judge may, with the concurrence of the district attorney and defendant, order commitment notwithstanding Section 3052.’
4. Pen.Code, § 1018 reads: ‘On application of the defendant at any time before judgment the court may, and in case of a defendant who appeared without counsel at the time of the plea the court must, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.’
ALLPORT, Associate Justice.
SCHWEITZER, Acting P. J., and COBEY, J., concur.