People v. Horton

WHELAN, J.

Defendant Carol Anita Horton appeals from an order denying her motion made purportedly under Penal Code, section 1168, requesting that the court order that a diagnostic study be made pursuant to Penal Code, section 5079, to enable the court to consider recalling her sentence and ordering probation.

Facts

On April 21, 1967, defendant was sentenced to state prison after pleading guilty to a charge of endangering the health of a child under circumstances likely to produce great bodily harm or death. (Pen. Code § 273a, subd. (1).) On February 23 1968, she made the motion, the denial of which is the subject of this appeal. In a declaration in support of the motion, defendant’s counsel declared:

“That Carol Anita Horton has made maximum progress since her last evaluation under 1203.03 (which itself was favorable and recommended probation);

“ That this is the optimum time for her release based on her progress to date;

“That she has received the greatest possible benefit from her incarceration in the Women’s Institution;

“That clinical studies are made only on orders of and are given only to the court;

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“That prison officials are anxious for such an order to

be

made so that release can be recommended under Penal Code 1203.”

The trial court summarily denied her motion.

Section 1168, Penal Code, Does Not Empower the Court to Order the Director op Corrections to Make a Diagnostic Study Under Section 5079, Penal Code.

Section 5079, Penal Code, now provides:

“The Director of Corrections shall provide facilities and personnel for a psychiatric and diagnostic clinic and such branches thereof as may be required at one or more of the state prisons or institutions under the jurisdiction of the Department of Corrections. He shall have full administrative authority and responsibility for operation of the clinics.