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People v. Superior Court of Fresno County8/15/1984
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
No. F003742
1984.CA.40449 ; 159 Cal. App. 3d 131; 205 Cal. Rptr. 413
August 15, 1984
THE PEOPLE, PETITIONER,
v.
THE SUPERIOR COURT OF FRESNO COUNTY, RESPONDENT; JERRY RAY BEASLEY, REAL PARTY IN INTEREST
Edward W. Hunt, District Attorney, and Dorin J. Ladd, Chief Deputy District Attorney, for Petitioner.
No appearance for Respondent.
Edward Sarkisian, Jr., Public Defender, and Nancy E. Kops, Deputy Public Defender, for Real Party in Interest.
Opinion by Woolpert, J., Brown (g. A.), P. J., and Martin, J., concurring.
Woolpert
In this mandamus proceeding the People seek to set aside the order of the trial court placing the defendant on probation with no jail time. The defendant, a repeat drunk driving offender, suffered severe permanent injury as a result of his own conduct. In determining whether the order was in excess of the court's jurisdiction, we must look to the language of the Vehicle Code, legislative prerogative, and the court's constitutional charge to protect against the imposition of cruel or unusual punishment.
We hold that the Legislature unequivocally mandated certain conditions of probation, including one year in jail, and prohibited the use of judicial techniques which have as their purpose the postponement or avoidance of the legislatively prescribed penalties. However, because the court has the ultimate duty to insure against cruel or unusual punishment, we return this matter to the trial court to determine if jailing this defendant would constitute cruel or unusual punishment.
Real party in interest, Jerry Ray Beasley (hereafter defendant), has been convicted by a jury of violating Vehicle Code section 23153, subdivision (b). In addition, the court found defendant had been convicted of violating section 23102, renumbered 23152 (driving under the influence), on two separate occasions within five years of the present offense. Probation was granted, with no time in custody being required.
In their petition, the People argue the order granting probation is void and should be vacated with directions that the terms of defendant's probation include one year in county jail.
The Sentencing Hearing
Even though defendant was in the position of being a "third time drunk driver" who had caused injuries to himself and others, his counsel urged the court to consider defendant's miserable physical condition as "punishment enough" and to disregard the apparently mandatory language of the Vehicle Code requiring a year in jail as a term of probation. Counsel further argued that this wheelchair-bound defendant may never again drive and cause further risk to the public and that jail authorities might have difficulty housing a person disabled in this way.
The trial court agreed with the defense that People v. Lopez (1983) 147 Cal. App. 3d 162 [195 Cal. Rptr. 27], permitted the sentencing court to disregard the legislative mandate. Following the Lopez view, the Penal Code section 1385 "in furtherance of justice" power of the court was invoked to avoid any jail time. The People argued that this was not a Lopez type statutory case and that defendant's danger to so
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