Van Velzer v. Superior Court

Opinion

BUTLER, J.

Jerry Lee Van Velzer pleaded guilty to child molesting (Pen. Code,

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§ 288, subd. (a)) and witness tampering (§ 137, subd. (a)) on No

[744]

vember 18, 1982. On December 16, 1982, the court sentenced him to prison for 13 years, 8 months'. Van Velzer appealed his sentence and, in an unpublished opinion, Vve remanded the case to the superior court for resentencing. ' :

When Van Velzer appeared for resentencing on December 19, 1983, he successfully asked the court for a continuance to have a new probation report prepared and a psychological evaluation conducted. At that time, Van Velzer’s attorney submitted a supplemental statement in mitigation, asking the court to consider'‘matters relative to Van Velzer’s care and treatment in prison since the dató of the original, now vacated, sentence.

The People objected to the court considering this new information, arguing the court could not consider any matters after the original December 16, 1982, sentencing. They based their argument on California Rules of Court

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rule 435(b)(1), analogizing Van Velzer’s resentencing to imposition of sentence following probation revocation. The court agreed and sealed the documents. Van Velzer now seeks a writ of mandate directing the trial court to consider all information up to and including the date of his resentencing.

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We agree with Van Velzer’s contention the court may properly consider all matters affecting a defendant being resentenced up to and including the date of resentencing, and therefore grant the writ.

Rule 435(b)(1) prohibits a sentencing court, upon revoking a defendant’s probation, from considering circumstances existing after the time probation was granted. Subsequent events may not be considered where a valid judgment exists and the court is merely imposing a previously suspended sentence after probation fails. However, Van Velzer is not a failed probationer. The effect of our reversing his sentence was to restore him to his original position as if he had never been sentenced on December 16, 1982. Thus, upon resentencing, Van Velzer is entitled to all the normal procedures and rights available at the time judgment is pronounced (see