People v. Superior Court (Thompson)

Opinion

THE COURT.

*

The People’s petition for writ of mandate and/or prohibition (B003798), filed February 22, 1984, the opposition thereto, filed March 8, 1984, and the petition of Walter Culbertson (B004046), filed March 7, 1984, hereby consolidated by order of this court, have been read and considered.

[321]

Real party in interest Kenneth Ricardo Thompson was convicted by plea of battery that took place on a school campus. (Pen. Code, §§ 242, 243.) The victim of the battery, Walter Culbertson, was not notified of the sentencing hearing. In the absence of the victim, the respondent court suspended proceedings and ordered probation for five years, with various conditions. The probation officer's report included statements by the victim.

At a February 2, 1984, hearing on a motion to vacate the judgment and to set aside the order granting probation, the respondent court stated that it had proceeded at the sentencing hearing in the absence of the victim on the assumption that the victim had been notified, but had chosen not to attend. The court denied the motion.

The People and the victim complain that the order of probation is unlawful in that the victim was not notified of the sentencing date.

It appears that the provisions of the California Constitution, article I, section 28,

1

and Penal Code section 1191.1,

2

are directory, as distin

[322]

guished from mandatory, in their effect. The failure of the probation officer to comply with that officer’s duty to notify the crime victim of the probation and sentencing hearing, and the resultant absence of the victim at such hearing, does not deprive the trial court of its jurisdiction to proceed.