People v. Klaess

California Court of Appeal Mar 17, 1982 No. Crim. 11458Published

Before: Puglia

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Holding. The court held that a sentencing judge may consider facts underlying dismissed charges if those facts are transactionally related to the admitted offense and essential to gauging the defendant's culpability. It further held that claims of judicial prejudice must be raised in the trial court to be preserved for appeal.

Issues

Whether the trial court violated the rule in People v. Harvey by considering facts of dismissed murder charges to aggravate the sentence for accessory after the fact.
Whether the trial court was prejudiced in passing sentence on the defendant.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Facts surrounding a dismissed charge which are “transactionally related” to defendant’s admitted offense may be considered in the disposition of the latter.”

“Defendant’s culpability for her admitted offenses can only be fully gauged by examining what she knew about the crime to which she was an accessory.”

“Having failed to take the proper steps in the trial court, the issue cannot be raised for the first time on appeal.”

Opinion

PUGLIA, P. J.

Defendant appeals from the judgment imposing an aggravated prison term following a negotiated plea of guilty to the crime

[822]

of accessory after the fact to murder. (Pen. Code, § 32.) Two counts charging defendant with murder, each with three special circumstances allegations, were dismissed as part of the plea bargain.

Defendant makes two contentions: (1) the trial court’s use of facts concerning the two dismissed murder counts violated the principle enunciated in

People

Harvey

(1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396]; and (2) the trial court was prejudiced in passing sentence on defendant. We shall affirm the judgment.

As part of the plea bargain, judgment and sentence was delayed pending defendant’s full and complete testimony in the murder trial of Luis Rodriquez with whom defendant had been jointly charged with the two counts of murder since dismissed as to her. Consummation of the plea bargain was deferred until Rodriquez’s trial ended.

Defendant came on for judgment and sentence April 10, 1981. Numerous character witnesses testified for defendant and her counsel was heard in her behalf. The trial court sentenced defendant to the upper term of three years finding that the factors in aggravation outweighed those in mitigation.

A stay of execution was granted, defendant was released on her own recognizance and the hearing was continued.

Defendant filed a motion to reconsider the sentence which was taken up at the continued hearing. The court reviewed and for the record restated the factors in aggravation and mitigation declaring that the findings made at the second hearing “will be those which prevailed rather than what I may or may not have clearly expressed” at the first hearing.

People v. Klaess

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PUGLIA, P. J.

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