Alanis v. Superior Court

Opinion

BURKE, J.

Rodolfo Alanis, an inmate at the California Institution for Men at Chino, seeks mandamus to compel the Los Angeles County Superior Court “to take jurisdiction of [his] petition for probation pursuant to . . . [a provision in Penal Code section] 1168 and to decide the case on its merits.”

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We have concluded that the alternative writ should be discharged and the peremptory writ denied.

[786]

In 1964

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jury found Alanis guilty of attempted robbery in the first degree (Pen. Code, §§ 211, 664) apd assault with a deadly weapon (Pen. Code, § 245). Probation was denied, and he was sentenced to prison. On appeal in an unpublished opinion the sentence for assault with a deadly weapon was vacated and in all other respects the judgment was affirmed; a petition for hearing was denied in 1967.

In August 1969 Alanis filed the petition for probation,

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in which he expressed an intent to move for (1) an order directing that a copy of the approved diagnostic study and a current evaluation of him be sent to the court for its consideration and (2) a probation hearing. The petition was supported by exhibits which, it is alleged, “[recommend] probation and/or [indicate] that the diagnostic study and current evaluation ... is a favorable one. ...” Respondent refused to send for the diagnostic study and presumably current evaluation and summarily denied the petition in August 1969 without considering its merits.

Under the provision relied upon in Penal Code section 1168 the court is authorized to recall a prison sentence and commitment and to resentence the defendant if such action is deemed warranted by the diagnostic study and recommendations approved by the Director of Corrections. The provision was not intended to authorize the granting of probation as an alternative to release on parole but rather to empower the court to take such action where it appears from the specified matters that the prison sentence should never have been imposed.