People v. Morrison

California Court of Appeal Aug 20, 1980 No. Crim. 34457Published

Before: Johnson

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Holding. The court held that the reinstatement of charges following the vacating of a plea bargain does not violate double jeopardy, and that a trial court may impose a new three-year probationary term upon conviction as probation is an act of clemency rather than punishment.

Issues

Whether a charge of violating Penal Code section 288 could be reinstated after the dismissal of a plea-bargained section 288a charge.
Whether the imposition of a new three-year probationary term exceeded the sentencing limits established by People v. Collins.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Nothing in Collins limits reinstatement of counts such as count I herein.”

“Where a plea of guilty is later found defective at a defendant’s behest, no double jeopardy occurs because of restoration of, or resumption of proceedings with respect to, any remaining charges existing at the time of the original plea bargain.”

“Probation is not a form of punishment. It is an act of clemency in the discretion of the trial court.”

Opinion

JOHNSON, J.

In 1974, appellant was charged, in count I, with a violation of Penal Code section 288 (lewd and lascivious act upon a child under 14); in count II, with a violation of Penal Code section 288a (oral copulation with a child under 14 and more than 10 years younger than appellant); and in count III with a violation of Penal Code section 136-1/2 (dissuading a witness by means of a bribe). Thereafter, appellant entered a guilty plea to the charge of oral copulation in count II, but with the remaining allegations of that count stricken and counts I and III dismissed, all as a part of a plea bargain. On May 16, 1975, imposition of sentence was suspended and he was placed on formal probation for three years on various conditions, including a condition that he spend 90 days in the county jail.

January 1, 1976, Penal Code section 288a was amended so that simple oral copulation, unless committed by force, or while in prison, or with a minor, was no longer prohibited.

May 3, 1978,

People

Collins

(1978) 21 Cal.3d 208 [145 Cal.Rptr. 686, 577 P.2d 1026], provided that where a prior plea bargain involving Penal Code section 288a had been entered into and the judgment was not final, the 288a charge must be dismissed, though any remaining charges originally pled and dismissed, could be reinstated.

Meanwhile, questions had arisen as to whether appellant’s conduct with various minor boys had caused him to be in violation of the term of his probation. Probation was revoked in 1976. Eventually, in June 1978, the original guilty plea was vacated, and all three causes of action were reinstated. On September 20, 1978, the People moved to dismiss count II (Pen. Code, § 288a). A trial court heard the matter, based on a submission of the preliminary hearing transcript, and found appellant guilty as charged in counts I and III.

[381]

February 1, 1979, appellant was sentenced to state prison for the term prescribed by law, with execution of sentence suspended and he was placed on probation for three years. From this he appeals, contending that:

People v. Morrison

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JOHNSON, J.

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