People v. Superior Court (Frietag)

California Court of Appeal Aug 30, 1988 No. C004418Published

Before: Puglia

AI Brief

AI-generated · verify before citing

Holding. The court held that an allegation of great bodily injury, even when incorrectly cited under an inapplicable enhancement statute, sufficiently pleads the underlying fact of bodily injury to render a defendant statutorily ineligible for probation under Penal Code section 1203.066.

Issues

Whether an allegation of great bodily injury cited under an inapplicable statute provides sufficient notice to render a defendant ineligible for probation under Penal Code section 1203.066.
Whether the accusatory pleading must expressly cite the specific statute governing probation ineligibility to trigger its application.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“It is the pleading of the fact, here the causing of bodily injury to the victim of a violation of section 288, which provides notice that an adverse finding will result in ineligibility for probation.”

“That allegation provides sufficient notice to defendant that if found true he will be ineligible for probation under section 1203.066.”

Opinion

PUGLIA, P. J.—

The issue in this writ proceeding is whether an allegation of great bodily injury improperly charged as an enhancement

[249]

under an inapplicable section of the Penal Code nevertheless constitutes the adequate pleading of a fact rendering defendant statutorily ineligible for probation when found true by the jury. We shall hold that it does and order a peremptory writ to issue.

An amended information charged defendant with two counts of lewd and lascivious conduct on a child under 14 years of age (Pen. Code, § 288, subd. (a); all statutory references to sections of an undesignated code are to the Penal Code.) A third count charged defendant with felony child endangerment. (§ 273a, subd. 1.) Appended to the section 288, subdivision (a) charges were allegations that in the course of committing those offenses defendant caused great bodily injury to the victim “within the meaning of Penal Code section 12022.8.” A jury convicted defendant of all charges and found the great bodily injury allegations true.

Prior to sentencing defendant moved to dismiss the great bodily injury findings on the ground section 12022.8 under which they were expressly charged is by its terms inapplicable to a section 288, subdivision (a) violation.

The court granted the motion. Over the People’s objection that section 1203.066, subdivision (a)(2) prohibited probation, the court suspended imposition of sentence and granted probation.

The People filed a notice of appeal and a petition for writ of mandate. Mandate, not appeal, is the proper means for the People to secure review of an order granting probation. (See § 1238, subd. (d); cf. § 1238, subd. (a)(10).)

Section 1203.066, subdivision (a)(2) prohibits the granting of probation to a defendant “who caused bodily injury on the child victim in committing a violation of Section 288.” Subdivision (d) of section 1203.066 provides: “The existence of any fact which would make a person ineligible for probation under subdivision (a) shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury.”

People v. Superior Court (Frietag)

AI Brief

More from California Court of Appeal

Related research

AI Brief