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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. John Mertz WARNER, Defendant and Respondent.

Cr. 8340.

Decided: July 27, 1976

Evelle J. Younger, Atty. Gen., by William G. Prahl, Deputy Atty. Gen., Sacramento, for plaintiff-appellant. Jerome S. Stanley, Sacramento, for defendant-respondent.

The People appeal from an order of the superior court granting defendant John Mertz Warner probation following 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 Defendant was sentenced to prison, but execution of sentence was suspended for a five-year probationary period.

The record before us discloses the following: In February 1975, the defendant was indicted for one count of lewd and lascivious conduct with a child under the age of 14 years (§ 288), and three counts of oral copulation (§ 288a) committed upon three male adolescents.2 Defendant was arraigned, and entered pleas of not guilty to each count. This court has taken judicial notice (Evid.Code, § 452, subd. (d)) of a separate four-count felony complaint (Sacramento Municipal Court complaint No. 26608f) filed April 11, 1975, while defendant was at liberty on bail. In that complaint, defendant was charged with an act of oral copulation (288a) and lewd and lascivious conduct upon a 13-year-old boy (not the same victim as in the earlier indictment).

Pursuant to a plea bargain (§ 1192.5), defendant withdrew his not-guilty plea and entered a plea of guilty to the section 288 count of the indictment. The People agreed to dismiss the remaining counts, and also, to forego prosecution of the newer offenses.

This appeal reaches only the postplea issue involving the grant of probation without confinement. Penal Code section 1238, subdivision (a)(5), authorizes an appeal from ‘[A]n order made after judgment, affecting the substantial rights of the people.’ An appeal may be taken by the People from an order placing defendant on probation after first imposing sentence and suspending execution thereof. Such a proceeding is within the meaning of section 1238, subdivision (a)(5). (People v. Orrante (1962) 201 Cal.App.2d 553, 556, 20 Cal.Rptr. 480; People v. Beasley (1970) 5 Cal.App.3d 617, 630, 85 Cal.Rptr. 501.)

The People contend that Warner was ineligible for probation by reason of his two prior California felony convictions3 for similar offenses. They further contend that in any event, it was an abuse of the court's discretion to grant Warner probation in light of his extensive history of perverted sex activities.

The transcript of the sentencing procedure does not reveal whether the trial court considered the defendant's prior felony convictions for purposes of determining his eligibility for probation (§ 1203, subds. (d)(2), (e)(4)(5), since amended stats. 1975, ch. 1004), or simply on the question of his suitability for probation.

We preliminarily note that Penal Code section 12034 does not expressly require that prior convictions be charged and proved as a predicate in establishing probation eligibility. We further acknowledge that the two prior California felony convictions were not charged in the indictment.

Prior to sentencing, the defendant admitted to the examining psychiatrists and probation officer his prior convictions, the circumstances surrounding them, and the history of his psychiatric treatment, as well as his penal confinement. Although ample opportunity existed for denial of the prior convictions at the hearing for pronouncement of judgment and sentence, defendant and his counsel did not deny them. (Pen.Code, § 1204.)

Although the conviction was late invalidated, the defendant admitted that in 1952, in Sioux Falls, South Dakota, he was convicted of child molestation, for which he served six years of a 10-year term. In 1960, in San Francisco, California, he was convicted of violations of Penal Code sections 288 and 288a, oral copulation. The records of the California Bureau of Identification indicate that he was placed at Atascadero State Hospital on the 22nd of June 1960. On the 19th of October 1961, he was discharged from the hospital and sentenced to prison at San Quentin. He was paroled in 1964, and discharged from parole supervision in 1966. In March 1966, in Glendale, California, Warner was convicted once again of a violation of Penal Code section 288 and was again denied probation and sentenced to prison. He was paroled in 1972 and discharged from parole on September 27, 1974. The present offenses took place between April and October of 1974.


Although the prior convictions were not charged in the indictment, and thus were not formally admitted or proved, they were available to the court in the probation report, both as admissions by the defendant to the examining psychiatrists and as information available in the report of the Bureau of Identification of the State of California (‘Rap Sheet’).

It is generally conceded that the trial court, in the exercise of its discretion in passing upon an application for probation, may take into consideration any facts or circumstances concerning the defendant developed at any time prior to the court's final action of the application (People v. Superior Court of Imperial County (1930) 208 Cal. 688, 691, 284 P. 449), including prior felony convictions admitted by the defendant. (People v. Tell (1954) 126 Cal.App.2d 208, 209, 271 P.2d 568).

However, the Supreme Court in People v. LoCicero (1969) 71 Cal.2d 1186, 1188, 80 Cal.Rptr. 913, 459 P.2d 241 has determined that in order to bar a defendant from probation eligibility, prior convictions must be charged an determined according to the procedures laid down in the Penal Code which provide for pleading of the prior conviction, trial of the issue, and a special verdict. Prior convictions coming to the court's attention in some other fashion, however, may be considered by the court in deciding defendant's suitability as distinguished from his eligibility for probation.

We conclude therefore that the uncharged prior convictions may not be considered in determining defendant's eligibility for probation. We reject the People's contention that Warner was ineligible for probation by reason of his prior felony convictions.

At the time of imposition of sentence, the trial court had available for review and guidance the facts and circumstances surrounding the present offenses, the defendant's prior felony history (sex perversion with adolescent males), the reports of three examining psychiatrists, and the probation report. The reports of the psychiatrists dealt with the defendant's admitted homosexuality and his past and present conduct, treatment, incarceration, and prognosis for change in his antisocial homosexual practices.

Dr. Whipple reported, ‘PSYCHIATRIC HISTORY: He received group therapy at Atascadero on a weekly basis for one year, and more group therapy at San Quentin for one year initially, and then for four more years the second time around. In addition, he has consulted Dan Sorenson, who is a Master's level psychologist at Vacaville. . . . [¶] The diagnosis . . . is sexual deviation, pedophilia. I do feel that, by reason of mental disorder, this man is predisposed to the commission of sexual offenses. In addition, I feel that he is a menace to the health and safety of others. . . .’ (Emphasis added.)

Dr. Lyons arrived at similar conclusions, stating: ‘This man has been convicted of sexual offenses in the past. In 1952 he was sentenced in South Dakota and served a little over six years . . .. In 1960 he was sentenced in California and served three years. In 1966 he was again sentenced in California, serving six years and giving his release date of December 1974. . . . ¶ I believe that we are dealing here with an out and out confirmed homosexual. I view homosexuality as a particular form or personality or character disorder and I believe homosexuality is subsumed under the heading of Character Disorders. These are long term and maladaptive patterns of interaction which are very commonly hard to treat psychiatrically . . .. In my opinion, very little if anything can be done to abolish this man's homosexuality but, . . . with psychiatric treatment, . . . the anti-social acting out part of his sexual perversion may well be able to be controlled. The odds are against such a beneficial improvement in this situation, . . . I think it is still within the realm of possibility. . . . [¶] In my opinion, the defendant is predisposed to the commission of sexual offenses . . .. [¶] Also, . . . he is so predisposed to such a degree that he is dangerous to the health and safety of others. . . . [¶] Lastly, . . . incarcerating this man again will absolutely insure against a repetition of his misbehavior, for a time . . ..’ (Emphasis added.)

Finally, Dr. Galioni related the following: ‘It is my opinion that Mr. Warner does have a personality disorder which predisposes him to the commission of sexual offenses with teen age males. He is predisposed to the degree that he is dangerous to the mental health of others inasmuch as his activities have a detrimental impact on the normal sexual development of his victims.’ (Emphasis added.)

Although the psychiatrists did not arrive at a consensus as to treatment or disposition, they did agree that defendant was a sexual deviate and a menace to society.

The probation report discloses that in 1960–1961, defendant received treatment for his sexual disorder at Atascadero State Hospital; and while confined at San Quentin in 1966, he received extensive psychological treatment for his dysfunction. In each instance where treatment was extended, the defendant failed to respond, for when released from custody, he resumed his perverted activities. He has exhibited a propensity for young boys as victims, although acknowledging the resulting psychological damage to their sexual growth and psychological maturation.

Our review of the record is directed to the question of whether the facts and circumstances presented to the trial court reveal this to be a case in which the ‘ends of justice would be subserved by granting probation’ or whether ‘there are circumstances in mitigation of the punishment prescribed.’ (Pen.Code, § 1203, subd. (a).) The probation officer recommended an extended term of confinement as a condition of a five-year period of probation. Also, immediately prior to pronouncement of sentence, the trial court commented, ‘The fact of the matter is, if I were to send him to state prison now it would virtually amount to a life sentence. And I'm not disposed to be that drastic with this man at this time.’ The comments of the probation officer and the judge are their conclusions only, and are not supported by any facts. Our search of the record fails to reveal so much as a scintilla of evidence, circumstance, admitted fact or inference supportive of a conclusion that the circumstances present a case where the ‘ends of justice’ would be served by placing the defendant on probation, or where mitigation of the prescribed punishment is indicated.

In commenting on the court's discretion to grant or deny probation, the California Supreme Court in People v. Russel (1968) 69 Cal.2d 187, at 194, 70 Cal.Rptr. 210, at 215, 443 P.2d 794, at 799, stated:

‘The courts have never ascribed to judicial discretion a potential without restraint. In the early case of Bailey v. Taaffe (1866) 29 Cal. 423, at page 424, this court took pains to delineate limits of judicial discretion in the following terms: ‘The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised exgratia, but a legal discretion, to be exercised in comformity with the spirit of the law, and in manner to subserve and not to impede or defeat the ends of substantial justice.’ Similar standards were expressed in Gossman v. Gossman (1942) 52 Cal.App.2d 184, 195, 126 P.2d 178, 184, where the court quoted from Davis v. Boston Elevated Ry. Co. (1920) 235 Mass. 482, 496–497, 126 N.E. 841 as follows: “The word imports the exercise of discriminating judgment within the bounds of reason. Discretion in this connection means a sound judicial discretion, enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind, free from partiality, not swayed by sympathy nor warped by prejudice nor moved by any kind of influence save alone the overwhelming passion to do that which is just.”'

It has also been said that in considering probation, the trial court's exercise of discretion is primarily for the benefit of organized society and only incidentally for the defendant. (24 C.J.S. Criminal Law § 1618, p. 881.)

In determining whether to impose the penalty of confinement, or exercise the power of clemency by the grant of probation, an examination of the fundamental reasons for punishment should be undertaken. They may be cast in four categories. First, punishment is a deterrent to the commission of crime. As this court said in People v. Gardner (1976) 56 Cal.App.3d 91, 98, 128 Cal.Rptr. 101, 106: ‘Whether in an individual case punishment actually deters or not is unimportant. As a general proposition, it does deter, both by preventing one who is aware of a preordained punishment from doing the act which brings it upon him and also by making an example of the offender for the sake of others.’ A second element in considering punishment is rehabilitation of the criminal. In this instance, it does not appear that either deterrence of the defendant or rehabilitation are paramount considerations; his continued and repeated sex crimes reveal the total failure of past extensive efforts to help him by psychiatric and psychological treatment. A third reason for punishment is retribution, ‘Stern retribution, although it is no longer the prime purpose of the criminal law, may be a relevant factor in selecting punishment.’ (People v. Brust (1957) 47 Cal.2d 776, 791, fn. 8, 306 P.2d 480, 488.) Because of the adverse psychological impact the defendant's homosexual practices undoubtedly have had upon young male victims, as indicated by the psychiatric reports, consideration of this element is very much in order. Finally, a fourth reason for punishment is a means of providing safety to society by isolation of the offender. In the case of this defendant, who repeatedly and habitually practices sexual depravity upon young male adolescents, society is entitled to judicially imposed isolation by incarceration. The assurance of this isolation, by imprisonment for a substantial number of years, is appropriate.

We recognize the well-settled principle that where an appeal is taken from an order granting probation, upon a showing that there was a clear abuse of discretion by the trial judge, that order may be reversed. (See People v. Lippner, 219 Cal. 395, 400, 26 P.2d 457; People v. Ingram, 272 Cal.App.2d 435, 439, 77 Cal.Rptr. 423; People v. Mancha, 213 Cal.App.2d 590, 592, 29 Cal.Rptr. 72; People v. Privitier, 200 Cal.App.2d 725, 730, 19 Cal.Rptr. 640;People v. Hollis, 176 Cal.App.2d 92, 96, 1 Cal.Rptr. 293; People v. Bartges, 126 Cal.App.2d 763, 776, 273 P.2d 49; People v. Connolly, 103 Cal.App.2d 245, 247–248, 229 P.2d 112; People v. Adams, 100 Cal.App.2d 841, 844, 224 P.2d 873;People v. Jackson, 89 Cal.App.2d 181, 182, 200 P.2d 204; People v. Wiley, 33 Cal.App.2d 424, 429, 91 P.2d 907.) We conclude that in the totality of the circumstances, the grant of probation was a clear abuse of discretion. The chronicle of defendant's present and past conduct fails to reveal any redeeming characteristics which could lead a trial court reasonably to conclude that he would follow a different pattern of conduct were he free of confinement.

The order of July 10, 1975, suspending execution of the prison sentence and granting five years probation is reversed and the cause remanded to the trial court for further proceedings consistent with this opinion.


1.  All section references hereafter are to the Penal Code.

2.  One of the 288a counts charged that the victim (the same victim charged in the 288 violation) was under the age of 14 years and the defendant was more than 10 years his senior.

3.  Defendant's record, as revealed in the probation report, indicates three prior felony convictions for sex crimes, two in California and one in South Dakota. Defendant's 1952 South Dakota conviction was declared constitutionally invalid in 1958 on the ground that he had not been properly advised of his right to counsel. (State ex rel. Warner v. Jameson (1958) 77 S.D. 340, 91 N.W.2d 743.)

4.  The portion of Penal Code section 1203 pertinent to the question of parole eligibility as it existed at the time of sentencing provided in part as follows:‘(d) Except in unusual cases where the interests of justice demand a departure, probation shall not be granted to any of the following persons:‘. . ..‘(2) Any person who has been previously convicted once in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.‘(e) Except in unusual cases where the interests of justice would best be served in the person is granted probation [and where the district attorney concurs], probation shall not be granted to any of the following persons:‘. . ..‘(4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.‘(5) Unless he has never been previously convicted once in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony, any person who has been convicted of . . . a violation of Section 286, 288, or 288a, or a conspiracy to commit one or more of such crimes.’Subsequent to the proceeding from which this appeal ensued, the Legislature amended Penal Code section 1203 with reference to prior convictions so that it now reads as follows:‘(d) Except in unusual eases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:‘. . ..‘(4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.’

EVANS, Associate Justice.

PUGLIA, P. J., and PARAS, J., concur.

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