PEOPLE v. WILTSE

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel Ray WILTSE, Defendant and Appellant.

E001216.

Decided: February 21, 1986

Kimberly J. Grove, San Diego, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Keith I. Motley and Robert B. Shaw, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Following the California Supreme Court's granting a hearing and retransferring the case to us for reappraisal in light of People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029 and People v. Belmontes (1983) 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686, this court issued an unpublished opinion on February 27, 1984, affirming defendant Daniel Ray Wiltse's convictions of conspiracy to commit murder and first degree murder with a special circumstance finding the murder was perpetrated by lying in wait.  (4 Crim.12404)  The trial court had sentenced defendant to life imprisonment without possibility of parole before the California Supreme Court in the Williams decision held that a trial court may in its discretion under Penal Code section 1385 1 strike a special circumstance finding.   Being unaware of its authority to strike the special circumstance finding, the trial court, of course, did not exercise its discretion in that respect when it sentenced defendant.   Because Belmontes indicated Williams was to have retroactive application, our February 27, 1984, decision remanded the case to the trial court so that it could exercise its discretion under section 1385 as to whether or not to strike the special circumstance finding.2

In proceedings in the trial court following remand, the court decided the special circumstance finding should not be stricken.   Defendant has again appealed contending:  (1) the trial court erred in failing to obtain a new probation report;  and (2) the trial court erred in declining to consider defendant's good conduct and rehabilitative progress while in prison.

Statement of Facts

Facts Concerning the Crime and Trial

Defendant's mother, Carol Hill, was married to the victim, Donald Hill.   There were apparently marital and other difficulties between the Hills, and Donald Hill, defendant's stepfather, was killed under circumstances we shall describe.   Defendant, his mother and one Joe Cornelius were accused of conspiring to murder and murdering the stepfather.   It was the district attorney's theory that the mother, Carol Hill, was the instigator and mastermind of the plan, that Joe Cornelius was the trigger man and that defendant aided and abetted Cornelius in murdering the victim.

Prior to trial the district attorney offered to dismiss the special circumstance allegation against defendant if he would testify truthfully about his mother's part in the murder but, contrary to his attorney's importuning, defendant steadfastly refused to implicate his mother and did not testify at the trial.   The result was that Carol Hill was acquitted.   Defendant and Cornelius were convicted of first degree murder and conspiracy to commit murder.   The jury found true allegations that (1) the murder committed by Cornelius was intentional and carried out for financial gain;  (2) Cornelius intentionally killed the victim while lying in wait;  and (3) defendant intentionally aided and abetted Cornelius in the intentional killing of the victim while lying in wait.   Both defendant and Cornelius were sentenced to life imprisonment without possibility of parole.

The evidence developed at trial may be summarized as follows.   Donald Hill was a plant superintendent at the Valley Sanitation District in Indio.   It was Hill's custom to go to the plant during his off hours if there was a problem that needed his attention.   Even though he was on vacation at the time, at 2:30 a.m. on August 29, 1979, he told his wife he was going to the plant to check a malfunctioning motor.   It was later determined that no one from the plant had called Hill.

Donald Hill's body was found at approximately 5 a.m. that morning sprawled on the ground by his pickup truck in front of the south gate of the plant.   The truck engine was running, its lights were on and the driver's door was open.   Eyeglasses and keys were found on the ground near the body.   The gate was locked.   Death was caused by two gunshot wounds:  one to the back of the head and the other to the right temple, both inflicted at close range.

Defendant had told a number of people as early as 1978 that he wanted to have his stepfather killed.   On the evening of August 29, Cornelius and his wife spent the evening visiting with defendant and his girlfriend, Lisa Webb, at defendant's residence.   Cornelius and defendant left for an hour or two early in the evening.

At about 11 p.m., defendant stated he was going to see his mother.   He left on his motorcycle and was gone about 45 minutes.   At around 2 a.m., defendant and Cornelius left on the motorcycle.   They returned about one and a half hours later at which time Cornelius and his wife immediately left.   After returning to the residence defendant told Lisa Webb, ‘Don is dead.‘   Later that morning he asked her to say he had been with her all night and to lie about the fact he possessed a gun.

Several days after the victim's funeral, defendant told an acquaintance he was involved in Hill's murder although he did not see the killing.   He explained that there was a phone call to get Hill to the plant and that he and another person were on his motorcycle at the back of the plant.

Proceedings Following Remand for Exercise of Discretion on Motion to Strike Special Circumstance Finding

At the commencement of the hearing on remand, defendant requested permission to speak to the court informally.   Permission was granted and, not having testified at the trial, defendant proceeded to describe for the first time his version of the circumstances surrounding and the events involved in the killing.   According to defendant, he lost his job the day of the incident.   He started drinking, smoking ‘weed‘ and took heroin.   That night he had a telephone conversation with his mother.   The defendant recalled:  ‘ [S]he was crying very, very upset emotionally telling me that Donald Hill had whipped her and the kids that day and so forth and so on.   Really talked bad about him.   [¶]  I said don't worry about it.   Everything will be taken care of․‘

Later that night, between 1 and 2 a.m., defendant and Cornelius left the residence on defendant's motorcycle.   Cornelius telephoned Donald Hill and told him there was an emergency at the plant requiring his attention.   Carol Hill had previously suggested this course of action to Cornelius.   Defendant took Cornelius to the plant and left him there.   He was approximately one-half mile away when Donald Hill arrived at the plant and was killed.   Defendant stated he did not see or hear anything before Cornelius approached him and they returned to Danny's residence.

Defendant pointed out that at the time of the offense he was eighteen years old and heavily influenced by his mother, Carol Hill.   He stated that at the time he ‘idolized‘ his mother.   According to defendant, his mother ‘was the planner, the financial spender and so forth‘ in connection with the conspiracy.

In response to the court's question as to whether Carol Hill was the ‘mastermind,‘ the prosecutor conceded that that was the prosecution's theory at the trial.   Additionally, the prosecutor indicated that, despite the fact Carol Hill was acquitted, in his personal opinion she was guilty, ‘perhaps even somewhat more than guilty‘ compared to defendant.

Defendant's attorney told the court:  ‘I went to Danny in the jail and I tried and I tried ․ to get Danny to come forward to take the stand and to testify and to tell the truth.   I could not do it.  [¶]  He was mesmerized.   The grip that that woman had on this young man is unbelievable, your Honor.   She no longer has that grip.”

Defendant also talked about his progress toward rehabilitation in prison pending the first appeal.   He told the court that since he began serving his sentence he had ‘thought a great deal about what has happened and why it happened,‘ and had taken steps to correct the situation.   He has participated in self-help therapy groups in prison and completely severed his relationship with Carol Hill.   He has ‘done away with any types of drugs or alcohol 100 percent‘ and has learned a trade.   He has had all ‘clean time‘ in prison;  he has never been in trouble and has gotten along well with the staff and inmates at the various institutions where he has been placed.   Defendant was originally sent to San Quentin and was later transferred to Deuel Vocational Institution.   He was ultimately placed in the California Men's Colony at San Luis Obispo where he is a plumber.

Defendant requested, ‘I just ask that you consider all of the things that we have said here and consider that I am a 23-year-old young man now and I do have a chance someday of getting out and having a family and having a right life․”

Defendant's father also spoke to the court regarding defendant's progress while incarcerated.   The father has been an ordained minister for a number of years and is pastor of a church in Riverside.   After defendant was arrested, his father counseled him quite extensively and prayed with him during the course of the original trial court proceedings.   While at San Quentin defendant participated actively in the prison church in a leadership role.   Defendant has also completed courses in religion while in prison.   The father asked the court to take these factors into consideration:  ‘I would just like you to consider that he is a young man in spite of peer pressure atmosphere and all these things inside the penal institutions, Danny has proven he is a fine young man.   And I believe this unfortunate incident was a result of his growing up and lack of training and all.   And I would appreciate very much, your Honor, if you would consider this fact as far as his spiritual growth is concerned.”

At the conclusion of the hearing, the court declined to strike the special circumstance finding, stating:  ‘I will have the record show that since our last session in court, I can't say I've read everything in the transcripts, but I almost read every word of those transcripts that were supplied by Mr. Douglass [the prosecutor].  I did read the case, two cases that were cited.   I have taken note of the fact that Mr. Wiltse certainly is different in appearance and demeanor than he was during the trial.   Before Mr. Douglass raised the point, I did feel and I do now feel that it is not my function to focus in on the present condition of the defendant.   I think it's my responsibility to look at the case and to limit my consideration to the case itself as to whether or not, under the facts and under the law, justice requires that the special circumstances be stricken.  [¶]  And after giving the matter considerable consideration, I don't feel in conscience that I can make the decision that special circumstances should be stricken.   I do recognize that he has done good, and I'm sure he's going to continue to do good.   I recollect Mr. Douglass's statement that this type of plea properly should be addressed, maybe along the line someplace, some governor would recognize he has a change in his life and recognize that very seldom does the murderer, under circumstances of this situation, repeat that offense.  [¶]  But I don't think that's my function.   So the motion will be denied.”

Discussion

IFailure to Order Current Probation Report

 Defendant contends the case must be remanded for a new sentencing hearing because the trial court failed to obtain a current probation report.

Penal Code section 1203, subdivision (b), provides in relevant part:  ‘ [I]n 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, which may be considered either in aggravation or mitigation of the punishment.   The probation officer shall immediately investigate and make a written report to the court of his or her findings and recommendations․”

This section has repeatedly been held to require a current probation report be obtained where an appellate court has remanded the case to the trial court for resentencing.  (People v. Rojas (1962) 57 Cal.2d 676, 680–682, 21 Cal.Rptr. 564, 371 P.2d 300;  People v. Brady (1984) 162 Cal.App.3d 1, 3–4, 208 Cal.Rptr. 21;  People v. Cooper (1984) 153 Cal.App.3d 480, 483, 200 Cal.Rptr. 317;  Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744–745, 199 Cal.Rptr. 695;  In re Gomez (1973) 31 Cal.App.3d 728, 731, 107 Cal.Rptr. 609;  People v. Keller (1966) 245 Cal.App.2d 711, 715–718, 54 Cal.Rptr. 154.)   The rule has been held applicable even where the defendant is statutorily ineligible for probation.  (People v. Brady, supra, 162 Cal.App.3d at p. 7, 208 Cal.Rptr. 21;  contra, People v. Savala (1983) 147 Cal.App.3d 63, 70, fn. 4, 195 Cal.Rptr. 193;  cf. People v. Ware (1966) 241 Cal.App.2d 143, 146, 50 Cal.Rptr. 252.)

Although in explaining the purpose for our remand of the case to the trial court on the earlier appeal, we did use the word ‘resentence,‘ we neither vacated the sentence nor reversed the judgment as to the sentence, and we do not believe the remand was for resentencing in the sense contemplated by the cited decisions.   As we shall explain infra, the remand for exercise of the court's discretion to strike or not to strike the special circumstance finding required resentencing only if the trial court decided to strike the special circumstance finding.   However, it is unnecessary to base our resolution of this point on that basis because, in any event, under the procedure that was followed defendant was not prejudiced by the fact that no updated probation report was obtained.

‘The primary function served by the probation report required by section 1203 is to assist the court in determining an appropriate disposition after conviction.”  (People v. Edwards (1976) 18 Cal.3d 796, 801, fn. omitted, 135 Cal.Rptr. 411, 557 P.2d 995.)   Here, the trial court held, in effect, an evidentiary hearing at which defendant was permitted to relate not only his version of the circumstances and events involved in the murder and the conspiracy, but also his good prison conduct and his progress toward rehabilitation while in prison pending appeal.   Defendant was permitted to state his belief that the combination of drugs and his mother's overwhelming influence on him was responsible for his participation in the murder of his stepfather and, in addition, defendant's father was permitted to testify as to defendant's spiritual growth and involvement in religious activities while in prison.   While it may be that verification of some of this information by the probation officer might have been appropriate, the district attorney did not contest any of the information presented on the basis it was false or inaccurate;  he urged that the information presented relating to defendant's conduct while in prison should not properly be considered by the court.

We conclude there is no reasonable possibility the outcome would have been more favorable to defendant had an updated probation report been obtained.

II

Consideration of Factors Personal to the Defendant

 In response to defendant's contention the court should have considered his conduct and progress toward rehabilitation while in prison, the Attorney General first contends that circumstances personal to the defendant, as distinguished from the nature of his conduct in committing the crime and the extent of his involvement and culpability, are not appropriate considerations in the court's exercise of its discretion under Williams.   The argument is that the existence of the lying-in-wait circumstance is ascertained in the first instance exclusively on the basis of the facts relating to the crime and the manner in which it was committed.   Under this reasoning factors personal to the defendant aside from the nature of his conduct and the extent of his involvement and culpability in the commission of the crime would be irrelevant to the court's exercise of its discretion to strike or not to strike the special circumstance finding.

We do not agree.   The argument is based on a non sequitur.   The fact that the special circumstance finding itself is based exclusively upon factors relating to the crime and the manner in which it was committed does not compel the conclusion that a trial court may consider no other factors in deciding whether or not to strike the special circumstance finding ‘in furtherance of justice‘ (Pen.Code, §  1385).

In finally stating its conclusion in the Williams decision itself, the court said:  ‘ [T]he trial courts have the authority under section 1385 to dismiss special circumstance findings in order to make it possible for a person to be eligible for parole.  [¶]  Trial courts will exercise this power in a careful and thoughtful manner.   The wise use of this power will promote the administration of justice by ensuring that persons are sentenced based on the particular facts of the offense and all the circumstances.   It enables the punishment to fit the crime as well as the perpetrator.”  (30 Cal.3d at p. 489, fn. omitted, 179 Cal.Rptr. 443, 637 P.2d 1029, emphasis added.)   The court's words ‘and all the circumstances” may be a bit cryptic, standing alone, but taking color from the subsequent language ‘to fit the crime as well as the perpetrator,” it is abundantly clear the language used by the court reflected the language from Rockwell v. Superior Court (1976) 18 Cal.3d 420, 428, 134 Cal.Rptr. 650, 556 P.2d 1101, to which it had earlier referred in Williams.  Rockwell in turn had included excerpts from United States Supreme Court decisions as follows:  “ ‘ “ ․ focus on the particularized circumstances of the crime and the defendant” (Gregg v. Georgia [1976] 428 U.S. 153, 199 [49 L.Ed.2d 859, 889, 96 S.Ct. 2909, 2937] )’ ”;  “ ‘ “ ․ consideration of mitigating factors presented by circumstances of the particular crime or by the attributes of the individual offender” (Roberts v. Louisiana [1976] 428 U.S. 325, [333–]334 [49 L.Ed.2d 974, 982, 96 S.Ct. 3001, 3006] )’ ”;  “ ‘ “ ․ consideration of the character and record of the individual offender and circumstances of the particular offense․”  ( [Woodson v. North Carolina (1976) 428 U.S. 280,] 304 [49 L.Ed.2d [944,] 961, 96 S.Ct. 2978, 2991].)’ ”  (People v. Williams, supra, 30 Cal.3d 470, 486–487, 179 Cal.Rptr. 443, 637 P.2d 1029.)

Finally, a finding of special circumstances simply establishes the basis for the imposition of a statutorily prescribed increased penalty, which for this purpose may be analogized to a finding under any number of Penal Code sections providing for sentence enhancements upon proof of certain facts.   Where the trial court has discretion to strike these enhancements, rule 445 of the California Rules of Court authorizes an exercise of discretion to strike when circumstances in mitigation of punishment are present, and almost one-half of the circumstances in mitigation listed in rule 423 of the California Rules of Court relate solely to the character of the defendant.

III

Consideration of Good Conduct and Rehabilitative Progress in Prison

The fall-back position of the Attorney General is that at most the record shows the trial court disregarded defendant's good conduct and rehabilitative progress in prison, and that the court was not required to consider these circumstances in deciding whether or not to strike the special circumstance finding.   Here, we agree with the Attorney General.   Moreover, we are not persuaded the record establishes that the trial court actually disregarded these circumstances.

Addressing the latter point first, we believe a fair reading of what the trial court said and did is that it took recognition of defendant's good conduct and progress toward rehabilitation in prison but that in its view those circumstances should not control its determination of whether or not to strike the special circumstance finding.   Rather, it thought those circumstances should more appropriately be considered by the executive authority in some subsequent request for clemency.   The court expressly stated it had ‘taken note‘ of the changes in defendant, but that it did not think it appropriate ‘to focus in on the present condition of the defendant‘ (emphasis added).   Instead the court determined it should ‘limit [its] consideration to the case itself as to whether or not, under the facts and under the law, justice requires” (emphasis added) that the special circumstance be stricken.   If that is what the trial court meant, we agree with it.

 In any event, however, we do not believe the trial court was required to consider defendant's conduct and rehabilitative progress while in prison in determining whether or not to strike the special circumstance finding.   In a somewhat different context, where the original determinant sentence imposed by the trial court has been vacated or reversed on appeal and the case remanded for resentencing so that the trial court is again faced with making the various sentencing choices authorized or mandated by the determinant sentencing law, we are inclined to agree with the courts in People v. Brady, supra, 162 Cal.App.3d 1, 208 Cal.Rptr. 21, and People v. Cooper, supra, 153 Cal.App.3d 480, 200 Cal.Rptr. 317, that a defendant's conduct in prison during the pendency of his or her appeal may be an appropriate consideration.3  However, in this case no resentencing by the trial court was required unless it decided to strike the special circumstance finding.   Therefore, unless and until the trial court should decide to strike the special circumstance finding, it had no sentencing choices to make.   Even then the only viable sentencing choice in all probability was a sentence still indeterminate in form, 25 years to life, the prescribed sentence for first degree murder.

We recognize that the language in the appellate judgment found in our earlier opinion used the word ‘resentence” but our use of that word must be understood in the context in which it was used.   We have set out the language in full in footnote 2, ante, and therefore will not fully repeat it here.   But it will be noted that the introductory words to the order were ‘Under these circumstances, a remand is required in this case” and the order was “The case is remanded to the trial court”.   We did not order the sentence vacated nor did we reverse the sentence portion of the judgment, and that was in keeping with the purpose of the remand which was for the court to exercise its discretion whether or not to strike the special circumstance finding.

Perhaps the case cited by the parties that is most in point is In re Cortez (1971) 6 Cal.3d 78, 98 Cal.Rptr. 307, 490 P.2d 819.   In that case the California Supreme Court was faced with a situation somewhat similar to the present case.   Cortez was convicted in 1962 of four counts of selling heroin.   He was sentenced to prison for the term then prescribed by law, a term which, due to prior narcotics convictions, was increased from five years to life to ten years to life.   However, in People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, the Supreme Court held that Health and Safety Code section 11718 violated the separation of powers clause of the California Constitution.  Section 11718 prohibited the trial court from striking or dismissing from the accusatory pleading, except upon motion of the district attorney, an allegation of fact that, if admitted or found to be true, would change the penalty for the offense charged.

In Tenorio the court concluded its decision should be fully retroactive and suggested habeas corpus proceedings as a means of implementing the retroactivity.   Incarcerated defendants would petition for a new sentencing hearing at which time the trial court would exercise its discretion as to whether or not to strike the prior conviction or convictions that had resulted in the increased sentence.   In Cortez the court engaged in an extensive discussion of the procedural details involved in implementing the Tenorio decision.

The court commenced:  “Following the logical dictates of retroactivity, we seek to pinpoint the procedural posture of the case at the original sentencing when petitioner would have moved to strike a prior conviction, and then to reconstruct the scene as accurately as possible in order to provide the petitioner with a similar opportunity.”  (6 Cal.3d at p. 87, 98 Cal.Rptr. 307, 490 P.2d 819, emphasis added.)   The court went on:  “We conclude ․ that in order to restore a prisoner seeking Tenorio relief as closely as possible to his original position, he should be treated as though before the court at the time of pronouncement of judgment and should, therefore, be entitled to all the normal procedures and rights available at that time.”  (6 Cal.3d at p. 88, 98 Cal.Rptr. 307, 490 P.2d 819, emphasis added.)

It is true that thereafter in detailing the procedure to be followed the court stated:  ‘․ Fifth, the sentencing court should obtain a new probation report and/or a report from the Director of Corrections as to the conduct of petitioner in prison since his original sentencing.”  (6 Cal.3d at p. 89, 98 Cal.Rptr. 307, 490 P.2d 819, emphasis in orig.)   However, that statement and portion of the procedure must be ascribed, we believe, to the court's earlier reasoning and conclusion:  ‘Despite the sentencing judge's previous knowledge of the defendant, supplemented frequently by a pre-sentence investigation, a decision in a post-conviction proceeding as to the propriety and wisdom of granting probation requires a sensitive appraisal of character for which the presence of the petitioner in person is extremely helpful if not essential.   The intuitive estimate of character by a sentencing judge seasoned by experience lies at the very core of the proper exercise of discretion and depends to a significant degree upon the inarticulable message of presence.   Additionally, we think that an effective presentation of the merits of the petition depends not only on the petitioner's being present in person but also upon his having the assistance of counsel to fashion facts and arguments into a persuasive appeal to the court's discretion.  [¶]  The above analysis basically equates the post-conviction situation of the Tenorio petitioner with the situation of the ordinary defendant seeking probation.   This nexus is perhaps stronger in the case of a Tenorio petitioner with a single prior than in the case of such a petitioner with two or more priors, since a sentencing judge may be unwilling to strike several prior convictions.   In such cases, the motion to strike the prior rather than realistically raising the possibility of probation is more likely to present either the question of a lesser prison term with accompanying reduced period of parole ineligibility under the statute ․ or the question of ordering the sentences to run concurrently rather than consecutively.   Nevertheless, even in these instances, the sensitive character of the trial court's function remains.”  (6 Cal.3d at p. 87, 98 Cal.Rptr. 307, 490 P.2d 819, emphasis added.)

The situation presented by the case at bench, however, seems more akin to the situation presented in People v. Ware, supra, 241 Cal.App.2d 143, 50 Cal.Rptr. 252.   There, the defendant was to be resentenced following an appeal under the indeterminate sentencing law then in effect and the court failed to obtain a new probation report.   However, the defendant would have been eligible for probation only if the trial court found under Penal Code section 1203 that the case was one of those ‘  ‘unusual cases where the interest of justice demands a departure from the declared policy․’ ”  (241 Cal.App.2d at p. 146, 50 Cal.Rptr. 252.)   In view of that fact the court stated:  ‘The sentencing judge having tried the case, was familiar with the circumstances of the crime, and he was familiar with the background of the defendant as shown by the probation report prepared immediately after the trial.   The court knew defendant had been in the custody of the Director of Corrections ever since the first sentence had been pronounced.   A new probation report could have added nothing except to tell how defendant was getting along in prison.   We do not think that such additional information, had it been obtained, would have been of any significance in the trial court's determination as to whether this was an 'unusual’ case.   If a literal reading of section 1203 required a further reference to the probation department in this case, lack of it did not prejudice this defendant.”  (Id., emphasis added.)   The determination to be made by the trial court here was akin to that to be made by the trial court in Ware.   Here, no resentencing at all was required unless the court decided the special circumstance finding should be stricken.   And even if the special circumstance finding were stricken, probation, even if legally possible, was not a realistic possibility;  the sentence to be imposed was an indeterminate one, giving the trial court no spectrum of sentencing choices.

Finally, the approach by the court in In re Cortez, supra, of restoring a Tenorio petitioner “as closely as possible to his original position” (6 Cal.3d at p. 88) finds a parallel in rule 435, subdivision (b)(1), of the California Rules of Court, which provides that upon revocation and termination of probation pursuant to section 1203.2, when the sentencing court determines the defendant is to be committed to prison and the imposition of sentence was previously suspended, “[t]he length of the sentence shall be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term nor in deciding whether to strike or specifically not order the additional punishment for enhancements charged and found.”  (Emphasis added;  People v. Colley (1980) 113 Cal.App.3d 870, 872–873, 170 Cal.Rptr. 339;  see also People v. Jones (1982) 128 Cal.App.3d 253, 262–263, 180 Cal.Rptr. 228.)   While the situation presented by the revocation of probation is not precisely the same as that here presented, we are persuaded that a rule similar to that set forth in rule 435(b) is appropriate to the present problem.  (See and cf. In re Rodriguez (1975) 14 Cal.3d 639, 652, 122 Cal.Rptr. 552, 537 P.2d 384.)

Disposition

The judgment is affirmed.

FOOTNOTES

1.   All statutory references will be to the Penal Code unless otherwise specified.

2.   As we shall discuss infra, the wording of our order may have been imprecise.   The order read:  “Under these circumstances, a remand is required in this case because, at the time defendant was sentenced, it had not been established that sentencing courts had such discretion.   This remand, of course, is not intended to express any opinion of this court with respect to the merits.‘The case is remanded to the trial court so that the sentencing court may resentence with full knowledge of the scope of its discretionary powers to dismiss the special circumstance.”

3.   But see People v. Savala, supra, 147 Cal.App.3d 63, 70, footnote 4, 195 Cal.Rptr. 193, and compare People v. Ware, supra, 241 Cal.App.2d 143, 146, 50 Cal.Rptr. 252.   The growing number of cases discussing the problem in that context are set forth and discussed at length in People v. Brady, supra, 162 Cal.App.3d 1, at pages 3–8, 208 Cal.Rptr. 21.

KAUFMAN, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.