People v. Wilson

Opinion

HASTINGS, J.

Defendant was charged in count I of the information with assault with intent to commit murder (Pen. Code, § 217), in count II with assault with a deadly weapon (Pen. Code, § 245), in count III with sodomy (Pen. Code, § 286), in count IV with child molesting (Pen. Code, § 288), and in count V with false imprisonment. (Pen. Code, § 236). Two prior felony convictions were alleged. Pursuant to a plea bargain (Pen. Code, § 1192.5), defendant withdrew a not guilty plea, pleaded guilty to count IV, and admitted the second alleged prior conviction. After a hearing at which psychiatric testimony was received, the court found that no unusual circumstances existed wherein the interests of justice demanded that probation be granted and ruled that defendant was ineligible for probation. (Pen. Code, § 1203, subds. (d)(2), (e)(5).) A motion to strike the admitted prior conviction was denied. Defendant was sentenced to state prison, the sentence to run concurrently with that on any prior conviction. Defendant appeals from the judgment. The appeal reaches only post-plea issues; the validity of the guilty plea is not challenged.

Defendant sought to have the trial court institute mentally disordered sex offender proceedings. The court ruled that since defendant was ineligible for probation, he was likewise ineligible to be committed as a mentally disordered sex offender. (Welf. & Inst. Code, § 6301.) Defendant challenges that ruling on several theories.

Defendant first urges that a defendant who falls within the category of persons who may be granted probation in “unusual cases” (Pen. Code, § 1203 subds. (d), (e)) is not ineligible for probation within the meaning of section 6301 of the Welfare and Institutions Code. He con

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trasts such persons with those described in section 11370 of the Health and Safety Code who “shall not, in any case, be granted probation.” The latter, he claims, are truly ineligible for probation, whereas, he contends, those described in subdivisions (d) and (e) of section 1203 of the Penal Code are ineligible only after the trial court rules that theirs is not an unusual case.

Section 6301 of the Welfare and Institutions Code provides: “This article shall not apply to any person . . . ineligible for probation