People v. Beasley , 85 Cal. Rptr. 501 ( 1970 )

Opinion

ELKINGTON, J.

The People appeal from orders of the superior court (1) dismissing two counts of rape (Pen. Code, § 261, subd. 4) and one count of kidnaping to commit robbery (Pen. Code, § 209) against defendant William Augustus Morris, (2) granting Morris probation following his pleas of guilty to certain other charges, and (3) dismissing two counts of rape (Pen. Code, § 261, subd. 4) and one count of kidnaping to commit robbery (Pen. Code, § 209) against defendant Kenneth Beasley.

The record before us discloses the following.

The victim of the offenses charged against Morris and Beasley was an unmarried young lady of 22 years whose given name, Lois, will be used by us. Lois was employed as a cashier by a large San Francisco hotel. On the evening of November 20, 1968, she left her employment around 11 o’clock and started home by public bus. Leaving the bus at a transfer point she waited for another which would take her about a block from her home. While waiting, an automobile occupied by defendants Morris and Beasley and one Jackson (who is not a party to this appeal) drove up and stopped. They “started making noises” and calling out “Oh, baby.” However, the second bus soon arrived and the girl continued on her way home; unknown to her the three men followed. A few minutes later Lois left the bus and started walking toward her home where she lived with her parents. Almost home, she again saw the car with the three men, one of whom called out “There she is. That’s her.” Walking fast she heard a car door open after which a man grabbed her by the throat with one hand and over the mouth with the other. She kicked and screamed, but was thrown into the back seat of the automobile. Her shoes had been knocked off her feet and her front door key out of her hand.. Her mother, hearing the screams, ran to the window and saw the abduction.

Defendant Morris who “was the most aggressive and vile of the three,” was the car’s driver. He drove while one of the others placed his hand over Lois’ throat and told her to stop screaming. She was promptly relieved of the contents of her purse and a valuable topaz ring, and told that she was “going for a long ride.” The car was driven somewhere “up in the hills” where the men took off the girl’s upper clothing; she was ordered to remove the remainder. She complied because she believed Morris would carry out a threat he made to kill her. The men then raped her one by one, accomplishing six acts of sexual intercourse. One of the men tried to force the girl to orally copulate his sexual organ, but was somehow discouraged from the act. The men then disagreed over what they should do next. Morris’ expressed thought was “we’re going to have to kill her — we’re going to have to get rid of her.” Another suggested that they disfigure her face. Further violence was averted when the discussion turned to the “ransom” possibilities of the situation. Lois very intelligently entered into this conversation. She explained that she was a hotel cashier and that she took in about $600 cash during her shift. If they took her home and didn’t “bash up my face or anything” she agreed that the men could come to her cashier’s cage the next night and “say, ‘All right, hand over your money,’ and I’ll give it to you and I’ll wait for a few minutes until you have a chance to get out and everything, and then I’ll tell one of the bartenders, because the bartenders are right next to the cashier, and I said, ‘I’ll just say I have been held up,’ you know. And I said, ‘That’s all there is to it.’ I said, ‘Nobody will get hurt,’ you know. I said, T won’t lose my job, and the hotel is insured.’ ”

After being warned by Morris that if anything went wrong with the next night’s pretended robbery she would be killed and her “parents’ home would be bombed,” Lois was let out of the car about a block away from her residence. The police who had already been there were again called; Lois related the events of the evening and the “plans” for the hotel robbery to them. The next evening Morris and Beasley appeared at the hotel as agreed. Lois pointed them out to the waiting police and both were arrested.

There can be no doubt concerning the reliability of Lois’ recollection of the events of the evening in question, for her statements to the police and later to the grand jury were fully corroborated by uncontested confessions of Morris and Beasley. The men were thereafter released on bail.

Morris, Beasley and Jackson were each indicted by the San Francisco County Grand Jury on three counts of rape (Pen. Code, § 261, subd. 4), one count of kidnaping for robbery (Pen. Code, § 209), and one count of robbery (Pen. Code, § 211). Each rape count alleged that one of the defendants had directly committed the act while being aided and abetted by the others.

The remainder of the pertinent factual history of this case relates to proceedings before Superior Court Judge Bernard J. Glickfeld to whose department of the court the Morris and Beasley cases had been assigned.

Morris and Beasley pleaded not guilty to all charges. Jackson, who had a prison record, pleaded guilty to one of the charges against him and was returned to prison. On motion of the district attorney the remaining charges against him were dismissed.

It is conceded that following the arraignment of Morris and Beasley and their not guilty pleas, two successive unreported and otherwise unrecorded conferences were held in the chambers of Judge Glickfeld. Present at the meetings were the judge, counsel for Morris and Beasley, and an assistant district attorney. Agreements were reached, over the objection of the district attorney, for what Morris describes in his brief as a “ ‘package disposition’ of all the five charges.” Under this arrangement Morris and Beasley would each plead guilty to the robbery charge and to one of the rape charges. In return the judge promised to refer Beasley to the California Youth Authority,¹ and to dismiss his remaining kidnaping and rape charges. The consideration to Morris was that he would receive a suspended prison sentence and then be placed on probation for three years on condition that he serve

one year in the county jail under the “Work Furlough”² program; his remaining charges would also be dismissed.³

On February 21, 1969, Morris and Beasley appeared in court with their attorneys. Counsel asked leave to withdraw the previous not guilty pleas and to enter “new and different” pleas. Judge Glickfeld responded: “It is my understanding, just so we get this straight, that both of you men are going to enter guilty pleas to a 211 [robbery], Second Degree, and to a 261 [subd. 4], which is the rape charge?” Defense counsel agreed that such was the understanding previously reached. The judge then said: “I will tell you what this means and what I intend to do. And there is a third charge which is kidnaping with intent to commit robbery. And it is my intention at the proper time when the probation reports come in to dismiss that charge pursuant to section 1385 of the Penal Code.”

Addressing Beasley, Judge Glickfeld then said: “Now, I said upon a plea what I would do is refer your matter to the California Youth Authority. And after you plead your attorney would make a motion for probation, and it takes about 3 weeks. And you would remain on bail or OR[⁴] and after we get the report it is mailed down to Sacramento for approval by the Youth Authority and it takes about 10 days. So that takes about 4 or 5 weeks. And after we get the acceptance we will set a date and you will come in. And if you are accepted, then you will be sent to the Youth Authority for whatever rehabilitation program they have down there. . . . That is what I intend to do, and I put it on the record so there is no question.” Turning to Morris, the court said: “[I]t is my intent to treat your case as follows: State Prison, suspended, and put you on probation for three years, and one year in the county jail as a condition on a Work Furlough. . . . You will have to go in every night or whatever it is.”

A moment later the judge announced: “It would be my intention to dismiss 1 [rape], 3 [rape], and 4 [kidnaping] on Mr. Morris.” Questioned by the court clerk as to the disposition of the remainder of Beasley’s charges, he answered: “I am going to take those under submission for the date of sentencing, and it is my intention on March 21st to dismiss them pursuant to section 1385.” The People, represented by the district attorney, made appropriate objection to the judge’s intended disposition of the cases. And it was stated: “the district attorney’s position here is and it has been at all times that probation is not in order and it should be denied here.” Each defendant then made a “motion for probation.” The motions, as required by law (Pen. Code, § 1203), were referred to the probation officer to investigate and report to the court, and the date for hearing thereon was set for March 21, 1969.

Prior to the time set for the probation hearings the probation officer filed his report recommending that probation be denied as to both Morris and Beasley.⁵ With respect to Morris the report stated that he was ineligible for the Work Furlough Program because in view of the circumstances surrounding the case he was not a “proper candidate” for that program.

Lois, the victim of the admitted crimes, was directed to be present on March 21, the date set for hearing on the probation motions. On the morning of the probation hearing she was accompanied to the courtroom by a police inspector. This circumstance appears to have been a source of irritation to Judge Glickfeld and he castigated the inspector and his superior officer for their solicitude on Lois’ behalf.⁶ This factor should have been of no concern to the judge and we allude to it verbatim in the footnote as indicative of the judge’s frame of mind in our analysis of whether the judge used a sound judicial discretion in his determination of the matters here under discussion.

Penal Code section 1204 reasonably requires the district attorney in cases such as this to have the victim present at the probation hearing. That section provides that at the hearing circumstances of aggravation or mitigation “must be presented by the testimony of witnesses examined in open court” and by report of the probation officer as provided in Penal Code section 1203.⁷ Nor is it unusual in cases such as this for the victim of the crime to be escorted to the courtroom by a police officer assigned to the case. There are several reasons for this practice; one is particularly apparent here. As permitted, but not required, by law the judge had ordered that Morris and Beasley might remain at liberty on bail after their guilty pleas. They, and possibly their friends and relatives, would necessarily travel through and on the public corridors and elevators of the courthouse, to and from Judge Glickfeld’s courtroom. It seems idle even to point out that Lois should not be obliged to chance an unescorted confrontation with her self-confessed ravagers or their friends.

Later that morning the probation proceedings were called. After some discussion about a continuance the following appears in the record:

“[Judge Glickfeld] . . . For what it is worth, anyway, but the only thing that disturbs me, and I will say this here on the record, is that I just don’t like the undercurrent of pressures that are being put on from the outside on the district attorney’s office. And I don’t like the pressures that are being put on from the outside, I believe, on the probation department and the Work Furlough Program, in view of my experience with them and what they have been doing in the past and how they have been operating. And I will not tolerate any pressures on this court. The court is going to act in an independent manner and in its best judgment, and hopefully in good judgment. And I will answer to the right person, to my conscience and to my God, and that is who I will answer to, and that is all I can say. I will not tolerate any pressure on the court and district attorney or on any arm of the court; and the probation department is an arm of the court.

“Mr. Smith [of defense counsel]: Or the police department.

“[Judge Glickfeld]: And I won’t tolerate an^ pressures on the police either, and having somebody telling me he is here to protect somebody. I have got some pretty good protection here. So everything will go over to the 8 th on the motions. ... I will tell you one thing, if you find out any direct pressures have been exerted on any arm of the court, the probation department, police department, or anything else, I will bring the person before the court and there will be a hearing on a question of contempt of court. And I will tell you this right now, and with all the consequences that follow from it, if it comes to my attention, and that means everybody.”

The hearings were then continued to April 8. On that day Beasley, as promised, was committed to the California Youth Authority and the three remaining counts of the indictment against him were dismissed under the purported authority of Penal Code section 1385. Morris’ hearing was continued to April 11.

On the April 11 hearing the record shows the following, among other things, to have occurred:

“[Judge Glickfeld] : And Mr. Morris is 22 and so he is not eligible for that [California Youth Authority], and I had recommended Work Furlough Program. And the chief probation officer [Mr. Kavanaugh] was under a misinformation as to the powers of the court and apparently he thinks he is a judge, and I am not going to let him preempt my position or that of Judge Karesh or Judge Neubarth. I am not going to get into any discussion with him at this time, but the future will take care of itself. But the report indicates that probation should be denied and they say the man is ineligible for Work Furlough. And I just want to point out for the record that another man was put on Work Furlough who had two previous felonies without permission of the court and who was charged with robbery, second degree, 487,[⁸] and who was not a local resident, and who was on Work Furlough one day and then escaped and there was a bench warrant out for him. . . .

“I know that the district attorney’s office is strongly opposed to this, and I say this sincerely, but there is a lot of hocus-pocus in the background here, and I am going to persist in my judgment. And I sit here and I am responsible for this judgment, and it is my conscience, and I am going to answer to my God for my judgment. ... At this time I don’t want to make a fuss about the Work Furlough, but I will put you on probation for a period of three years, and as a condition of probation you are to spend the next 52 weekends in the county jail commencing Friday night at 7 o’clock, and you will be released at 6 o’clock Monday morning.[⁹] . . .”

“Counts 1 [Rape], 3 [rape], and 4 [kidnaping to commit robbery], which I indicated I am going to dismiss pursuant to section 1385 of the Penal Code, I am dismissing such counts.

“Mr. Norman: And may the record indicate the district attorney is objecting to the dismissing of those counts and it is the district attorney’s position, and he requests this court to set those matters for trial as soon as possible.

“[Judge Glickfeld] : I have already dismissed them and I can’t set something I have dismissed.

“Mr. Norman: Well, we would ask your Honor to not dismiss and to set them for trial.

“[Judge Glickfeld]: I have already dismissed them, and if you want to appeal the use of my discretion, you have a remedy.

“Mr. Norman: We understand that. And for the record, Your Honor, and on behalf of the district attorney, it is felt that this is one of the most vicious and most aggravated offenses that has come in this county in the last several years, and we are objecting to the sentence in this case and feel that probation is not in order at all. . . . Might I inquire of the court just what hocus-pocus the court has said or alluded to?

“[Judge Glickfeld] : There has been a lot of pressure here. I have talked to Mr. Kavanaugh and I indicated the hocus-pocus, Mr. Norman, by reason of the type of person that was put on the Work Furlough, and I have indicated it because Mr. Kavanaugh was trying to preempt the function of the judge. Now, I have had a lot of information and I am not going to talk about it at this time, and which has come to my attention and which shows a lot of finagling in the background and effort to get to Mr. Kavanaugh with pressure. I am not going to go into this, but I am aware of them; and if you are not, you are being pretty naive. . . . And the next time this happens Mr. Kavanaugh will be in here on a contempt charge. It is that simple. Now you know my position. . . . And, for example, I will tell you one hocus-pocus which I got from the probation report. They referred to some letters sent in, and I had to request the letters and find out who sent them in and what they said. That is one piece of hocuspocus, and I think the court is entitled to a full revelation of what the file contains. That is one, and I could tell you many more.”

Judgment against Morris was then pronounced; he was sentenced to state prison on each of the counts to which he had pleaded guilty. Judge Glickfeld thereupon ordered that each of the sentences be suspended, and that Morris be placed on probation on each count for three years, on condition that he serve 52 weekends in the county jail.

The People contend: (1) that Judge Glickfeld abused his discretion in granting probation to Morris, and in dismissing the unresolved charges of rape and kidnaping to commit robbery against Morris and Beasley; (2) that under the law (Pen. Code, § 1203) Morris was ineligible for probation; and (3) that the orders of dismissal were invalid for failure of the judge to set forth the reasons therefor “in an order entered upon the minutes” as required by Penal Code section 1385.

The People’s first contention, as indicated, relates to the “discretion” vested in courts on probation and dismissal proceedings. Recently California’s Supreme Court in People v. Russel, 69 Cal.2d 187, 194 [70 Cal.Rptr. 210, 443 P.2d 794], quoting earlier authority on the subject, stated:

“ ‘The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ . . . ‘ “ ‘The word imports the exercise of discriminating judgment within the bounds of reason. Discretion in this connection means a sound judicial discretion, enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind, free from partiality, not swayed by sympathy nor warped by prejudice nor moved by any kind of influence save alone the overwhelming passion to do that which is just.’”’” The court continued, saying (p. 195): “[W]e think, that all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue,” and that “ ‘ “In a legal sense discretion is abused whenever in the exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered.” ’ ” (P. 194.)

An observation seems appropriate at this point: The People of the Stake of California, represented by the district attorney, are a party the plaintiff in this and all criminal actions (Gov. Code, § 100). They, the People; are entitled to the same judicial impartality and fairness as any other litigant in our courts.

We first consider the contention that the order granting Morris probation was an abuse of the court’s discretion.

Such an order is appealable. Penal Code section 1238 designates the decisions from which the People have a right of appeal. Subdivision 5 of that section authorizes such an appeal “From an order made after judgment, affecting the substantial rights of the people.” It has been held that an order granting probation, as in Morris’ case, after pronouncement of judgment, imposition of sentence, and suspension of sentence is appealable by the People as such “an order made after judgment” (People v. Orrante, 201 Cal.App.2d 553, 556 [20 Cal.Rptr. 480]; People v. Superior Court, 118 Cal.App.2d 700, 703 [258 P.2d 1087]; In re Sargen, 135 Cal.App. 402 [27 P.2d 407]).

It is established law that where an appeal is taken from an order granting probation, upon a showing that there was a clear abuse of discretion by the trial judge, his order will be reversed. (See People v. Lippner, 219 Cal. 395, 400 [26 P.2d 457]; People v. Ingram, 272 Cal.App.2d 435, 439 [77 Cal.Rptr. 423]; People v. Mancha, 213 Cal.App.2d 590, 592 [29 Cal.Rptr. 72]; People v. Privitier, 200 Cal.App.2d 725, 730 [19 Cal.Rptr. 640]; People v. Hollis, 176 Cal.App.2d 92, 96 [1 Cal.Rptr. 293]; People v. Bartges, 126 Cal.App.2d 763, 776 [273 P.2d 49]; People v. Connolly, 103 Cal.App.2d 245, 247-248 [229 P.2d 112]; People v. Adams, 100 Cal.App.2d 841, 844 [224 P.2d 873]; People v. Jackson, 89 Cal. App.2d 181, 182 [200 P.2d 204]; People v. Wiley, 33 Cal.App.2d 424, 429 [91 P.2d 907].)

The manner in which a trial judge must exercise his discretion in granting or withholding probation has been pointed out by the Supreme Court.

In Times-Mirror Co. v. Superior Court, 15 Cal.2d 99, 113 [98 P.2d 1029], the court declared:

“Section 1203 of the Penal Code prescribes the procedure governing applications for probation and the source from which the court may receive the necessary information to enable it to act in such matters. By this section of the code the court must refer the application to the probation officer whose duty it is after investigation to make a report to the court which report the court must consider in making its final decision in granting or denying probation. We find nothing in said section of the code nor in any other provision of the law which would justify any different approach to the court when matters of probation are before it than when the regular proceedings before and at the trial are under the court’s consideration. . . . The probation of a defendant is a legal act of the court and is governed by the same rules as are applicable to any other legal proceeding before the court.”

More recently in People v. Wade, 53 Cal.2d 322, 337-338 [1 Cal.Rptr. 683, 348 P.2d 116], the court stated:

“The probation of offenders is provided for in section 1203 of the Penal Code: 1 “. . . in every felony case in which the defendant is eligible for probation, before any judgment is pronounced, and whether or not an application for probation has been made, the court must immediately refer the matter to the probation officer to investigate and to report to the court. . . . The probation officer must thereupon make an investigation of the circumstances surrounding the crime and of the prior . . . history of the defendant, must make a written report to the court . . . and must accompany said report with his written recommendations ... as to the granting or withholding of probation. ... At the time . . . fixed by the court, the court must hear and determine . . . the suitability of probation in the particular case, and in connection therewith must consider any report of the probation officer, and must make a statment that it has considered such report. ... If the court shall determine that there are circumstances in mitigation of punishment prescribed by law, or that the ends of justice would be subserved by granting probation to the defendant, the court shall have power in its discretion to place the defendant on probation. . . .” ’ [f] The purport of the statute and the cases is that the trial court must not decide the question of probation until it is in possession of all of the relevant facts, especially those contained in the probation report. [Italics ours.] There is little question from the record in the case at bar that the trial judge had decided the queston of probation against the defendant at the time of granting her request to file an application therefor. It is clear that the judge did not wait until the report was completed and submitted to her.”

In Wade, the Supreme Court found the trial judge’s premature decision on the question of probation to be abusive of the court’s discretion, and therefore error.

As indicated, Morris asserts in his brief and repeats at oral argument that the early conferences with Judge Glickfeld resulted in “a package disposition of all five charges.” He insists that the judge’s promise of probation was an integral part of that disposition. The record fully supports Morris’ contention.

Throughout the subject proceedings Judge Glickfeld made it clear that such an agreement had been reached, and that despite further factual revelation, report, or recommendation of the probation officer, or objection of the People, he intended to follow it. This intent was memorialized on the record even before the Morris and Beasley guilty pleas were entered.

The judge at that time told the defendants “what I intend to do.” To Morris he stated: “. . . it is my intent to treat your case as follows: State Prison, suspended, and put you on probation for three years, and one year in the County Jail as a condition on a Work Furlough. In other words, you are in an apprentice program and whatever that is we will work out. You will have to go in every night or whatever it is. . . . So that is what l am going to do. And, sir, you have got two counts and I would make them concurrent. And again, there would be a probation report before this, which would take the same length of time. . . .” (Italics added.) The district attorney interrupted saying, “We would like to be heard at the conclusion of what your Honor says.” (Italics added.) The judge responded: “Yes, but I am fust telling him what I am going to do.” (Italics added.)

As we have noted, the probation officer thereafter rejected Morris for the judge’s contemplated Work Furlough program. He also filed his report and recommended against probation. In open court the judge responded: “I don’t like the pressures that are being put on from the outside, I believe, on the probation department and the Work Furlough Program, ... I will not tolerate any pressure on the court and district attorney or on any arm of the court; and the probation department is an arm of the court. . . . And the chief probation officer was under a misinformation as to the powers of the court and apparently he thinks he is a judge, ... I am not going to get into any discussion with him at this time, but the future will take care of itself. But the report indicates that probation should be denied and they say the mam is "ineligible for Work Furlough. . . . This court will not be threatened by threats of what the newspapers are going to do and by other threats of what Mr. Kavanaugh intends to do. And the next time this happens Mr. Kavanaugh will be in here on a contempt charge. It is that simple. Now you know my position.”

We recognize that the court did endorse on the probation report the legally required language, “I have read and considered the report of the probation officer." (Pen. Code, § 1203, 1st par.) But here again, as in Wade, supra, 53 Cal.2d 322, 337, “During the proceedings at which judgment was pronounced, the court made it quite clear that [its] earlier preconception had not, in fact, been changed despite reciting the formula in the language of the statute that ‘the court has read and considered the report of the Probation Officer.’ ” In People v. Surplice, 203 Cal.App.2d 784, 791-792 [21 Cal.Rptr. 826], where the trial judge made such a statement, the appellate court held that any inference arising therefrortji was “expressly negated" by other statements and the conduct of the judge.

As was the case in People v. Wade, supra, 53 Cal.2d 322, 338, “There is little question from the record in the case at bar that the trial judge had decided the question of probation” long before he was in possession of the relevant facts of the probation report. The grant of probation to Morris under these circumstances was accordingly an abuse of discretion, an abuse which we think clear.

There is additional evidence pointing to an abuse of the court’s discretion.

Judge Glickfeld’s incomprehensible tirade (noted ante, fn. 6) against the victim of Morris’ crime, her police inspector attendant, and his superior officer obviously discouraged, or at least tended to discourage,¹⁰ her testimony as to the details of the offense as provided by Penal Code section 1204. And the judge’s threat “And the next time this happens Mr. Kavanaugh [the probation officer] will be in here on a contempt charge” quite clearly refers to that official’s recommendation against probation and rejection of Morris for the agreed Work Furlough program. Yet the duty to make such decisions is reposed in the probation officer by law. We note also the court’s repeated accusations of “pressure,” “hocus-pocus,” and “finagling.” These matters tend to indicate a lack of the impartial discretion, guided by fixed legal principles in conformity with the spirit of the law, required by People v. Russel, supra, 69 Cal.2d 187, 194.

Furthermore, Penal Code section 1203 clearly requires that the court exercise its discretion as to probation after the motion therefor and the filing of the probation officer’s report. This Judge Glickfeld did not do. Here it is clear, and so admitted by Morris, that the court was adhering to a “package disposition” long before reached, which included a grant of probation. This amounts to a failure to exercise a discretion required by law — the practical equivalent of an abuse of discretion — for which reason also the order granting Morris probation was improper. (See In re Brumback, 46 Cal.2d 810, 813 [299 P.2d 217]; Saidi-Tabatabai v. Superior Court, 253 Cal.App.2d 257, 262 [61 Cal.Rptr. 510]; Tobin v. Tobin, 181 Cal.App.2d 789, 794 [5 Cal.Rptr. 712].)

Accordingly, the order granting Morris probation must be reversed.¹¹

We find the People’s related contention that Judge Glickfeld had no discretion, but was instead prohibited by law from granting probation to oné convicted of rape “with force and violence” except with the consent of thé district attorney, to be without merit. The contention is based upon Penal Code section 1203 (4th par.), which provides: “Probation shall not be granted to any person who shall have been convicted of . . . rape with force 'or violence, . . . who in the perpetration of the crime . . . wilfully inflicted great bodily injury or torture, . . .” Section 1203 (5th par.), states: “in unusual cases ... in which the interests of justice would best be served thereby, the judge may, with the concurrence of the district attorney, grant probation.”

It is argued, not without some reason, that forcible rape necessarily includes infliction of “great bodily injury.” However, the Legislature has made clear an intent that “great bodily injury” as the term is used in section 1203 (4th par.) has a different meaning. Elsewhere in section 1203 (4th par.) it is said that probation shall not be granted to one convicted of rape with force and violence who at the time of the offense was “armed with a deadly weapon.” (Italics added.) Also the section denies probation, as a matter of law, if the perpetrator of such a crime “has previously been convicted of a felony.” (Italics added.) It is thus made clear that conduct beyond that necessarily required to commit forcible rape must appear before the accused is by law rendered ineligible for probation.

In People v. Merrill, 104 Cal.App.2d 257, 266-267 [231 P.2d 573], the court recognized that section 1203 denies probation to one who rapes by force and violence only where the bodily injuries or torture were more than that necessary to prove the rape charge. In that case bruises on the victim’s body, and the thumb gouging of her eye until she yielded, were held to constitute the bodily injury and torture required by section 1203. In the case before us Lois, fortunately, was not so additionally abused.

We note also that Morris and Beasley were charged with, and pleaded guilty to, violating Penal Code section 261, subdivision 4, referring to rape where the victim “is prevented from resisting by threats of great and immediate bodily harm.” It is section 261, subdivision 3, not here involved, that relates to rape where “resistance is overcome by force or violence.”

We turn now to the People’s contention that the dismissal of the unresolved charges against Morris and Beasley, under the purported authority of Penal Code section 1385, was abusive of the court’s discretion.

Penal Code section 1238, subdivision 8, states: “An appeal may be taken by the people: . . . From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy.” It is observed that the remaining counts of kidnaping and rape against Morris and Beasley were dismissed before either had been placed in jeopardy on those charges. A defendant is in jeopardy for an offense “ ‘when (1) placed on trial (2) for the same offense, (3) on a valid indictment or information or other accusatory pleading (4) before a competent court, (5) with a competent jury, duly impaneled and sworn and charged with the case; or, if the trial is by the court, it must be “entered upon.” ’ ” (People v. Hernandez, 250 Cal.App.2d 842, 848 [58 Cal.Rptr. 835]; 1 Witkin, Cal. Crimes (1963) p. 178, and see authorities there cited.)

No recognizable policy appears against prosecution or punishment for a previously dismissed felony offense when jeopardy has not attached. Indeed, Penal Code section 1387 expressly provides: “An order for the dismissal of the action, made as provided in this chapter [which includes § 1385], is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony.” (Italics added.)

The question on review of such a dismissal order ordinarily is also whether under the circumstances the trial judge exceeded the bounds of judicial discretion. If there was such an abuse of discretion the order must be set aside. (See People v. Superior Court, 249 Cal.App.2d 714, 718 [57 Cal.Rptr. 892]; People v. Gonzales, 235 Cal.App.2d Supp. 887, 890 [46 Cal.Rptr. 301]; People v. Winters, 171 Cal.App.2d Supp. 876, 880-882 [342 P.2d 538].)

Penal Code section 1385 reads as follows:

“The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”

People v. Gonzales, supra, 235 Cal.App.2d Supp. 887, concerned an appeal by the People from an order under Penal Code section 1385 dismissing a criminal action on the trial court’s own motion. The order was reversed. Explaining that the rights of the People should be carefully considered in such a proceeding, the court quoted Singer v. United States, 380 U.S. 24 [13 L.Ed.2d 630, 85 S.Ct. 783, 790], as follows: “ ‘The Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result.’ ” (Italics added.) The Gonzales court continued (p. 890): “[T]hfe courts generally weigh the recommendations and contentions as to the facts put forward by the prosecuting attorneys. . . . Under our adversary system, the court prior to receipt of evidence in course of trial or formal proceedings is usually not informed of all of the circumstances of the alleged crime nor of the evidence available to the prosecution to prove the guilt of an accused; it does not have the investigative facilities available to the office of the prosecutor. . . . [P. 892] By the observation of our basic notion that a criminal proceeding is basically adversary in nature, the general respect of the public for courts and the judicial process, we feel, will be promoted. Courts and judicial officers must at all times not only be fair in fact, but also be diligent in preserving the appearance of fairness as well.”

Specifically referring to Penal Code section 1385, it has been held that the language of that section, “furtherance of justice,” requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. (People v. Winters, supra, 171 Cal.App.2d Supp. 876, 887; People v. Disperati, 11 Cal.App. 469, 477 [105 P. 617].)

The record before us uncontrovertably shows that even before Morris and Beasley had entered their guilty pleas, and over the objection of the People, Judge Glickfeld had made up his mind to dismiss the charges in question. At that time he was without the benefit of the legally required probation officer’s report containing a full exposition of the case and the background of defendants. If the judge accepted out of court information in mitigation of defendants’ crimes, such was in violation of Penal Code section 1204. Reciting details of the early “package disposition” which included the dismissal of the kidnaping count and two rape counts against each defendant, the judge.declared: “That is what I intend to do and I put it on the record so there is no question.” (Italics added.) And the judge thereafter honored his promise.

As in the case of the order granting Morris probation, the predetermination of defendants’ cases, coupled with the circumstances and court-created atmosphere of the following proceedings, demonstrates a lack of the reasoned judgment, free from partiality, exercised in conformity with the spirit of the law, required by People v. Russel, supra, 69 Cal.2d 187, 194. We conclude that the trial court’s dismissal of the kidnaping and rape charges against Morris and Beasley was also an abuse of discretion.

There is yet another reason why the dismissals must be set aside. As indicated, section 1385 specifies that the “reasons of the dismissal must be set forth in an order entered upon the minutes.” (Italics added.) This requirement was not followed by Judge Glickfeld.

One of the purposes of the specification of reasons is to enable an appellate court to determine whether, in view of the reasons assigned to justify a section 1385 dismissal, a proper exercise of discretion is shown. (See People v. Winters, supra, 171 Cal.App.2d Supp. 876, 880.) And “A judge dismissing criminal charges without trial, upon his own motion, must record his reasons so that all may know why this great power was exercised, and such public declaration is indeed a purposeful restraint, lest magistral discretion sweep away the government of laws.” (People v. Winters, supra, p. 882.) People v. Silva, 236 Cal.App.2d 453, 455 [46 Cal.Rptr. 87], holds: “The statutory requirement for the entry of reasons for dismissals on the minutes is designed to protect the public interest against improper or corrupt dismissals. . . .”

The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter’s transcript may show the trial court’s motivation; the minutes must reflect the reason “so that all may know why this great power was exercised.” (See People v. Winters, supra, 171 Cal.App.2d Supp. 876, 880-882; People v. Disperati, supra, 11 Cal.App. 469, 476-477.)

Defendants cite certain cases as authority for the proposition that the court need not state reasons for a section 1385 dismissal in the minutes. People v. Smith, 133 Cal.App.2d Supp. 777 [284 P.2d 203], and People v. Superior Court, supra, 249 Cal.App.2d 714, respectively, hold that a written statement of reasons on the court’s docket, and a typewritten transcript of orally stated reasons forthwith filed at the court’s direction, were the substantial equivalent of a statement on the minutes. In those cases the requirement of a public declaration of reasons “so that all may know” was met; there was no such public declaration in the case at bench. People v. Silva, supra, 236 Cal.App.2d 453, 455, and People v. Fox, 126 Cal.App.2d 560, 567 [272 P.2d 832], hold that the “statement of reasons” requirement was made in the public interest and not for the

protection of the defendant. Since “ ‘The section has nothing whatever to do with the rights of the defendant’ ” (People v. Fox, supra) it was held in effect that he had no standing to complain.

It is urged that the obvious reason for dismissing the remaining counts against Morris and Beasley was the fact that they had pleaded guilty to the other counts. Were we also to speculate, we would consider it to be far more obvious that the reason for the dismissal was Judge Glickfeld’s illegal promise, made many weeks before, to do so. Such a discussion points up the necessity that the reasons “be set forth in an order entered upon the minutes” (Pen. Code, § 1385) “so, that all may know why this great power was exercised.” (People v. Winters, supra, 171 Cal.App.2d Supp. 876, 882.)

We find ourselves also in agreement with the People’s contention that the orders of dismissal were invalid for reasons apart from their entry being abusive of the court’s discretion.

The only statutory authorization, as well as the court’s purported justification, for the dismissals was Penal Code section 1385. Without the required statement of reasons therefore a dismissal under that section is invalid. This is now established law. People v. Superior Court, 69 Cal.2d 491, 503, fn. 7 [72 Cal.Rptr. 330, 446 P.2d 138], states: “If the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385.” (Italics added.) (See also People v. Evans, 275 Cal.App.2d 78, 80 [79 Cal.Rptr. 714]; People v. Superior Court, 240 Cal.App.2d 90, 92 [49 Cal.Rptr. 365]; People v. Shaffer, 182 Cal.App.2d 39, 45 [5 Cal.Rptr. 844].) Under this authority also, we must hold Judge Glickfeld’s dismissal orders to be invalid.

We have considered the effect of the restoration of the “kidnapping to commit robbery” (Pen. Code, § 209) charge against Beasley. That defendant has now been convicted of, and is undergoing punishment for, the robbery of Lois. The judgment as to the robbery has not been appealed and it is now final. It is patent that the kidnaping of Lois to commit robbery and her robbery were parts of a course of criminal conduct, the objective of which was the theft of the victim’s property. In re Ward, 64 Cal.2d 672, 675-676 [51 Cal.Rptr. 272, 414 P.2d 400], which also concerned charges of kidnaping for robbery and the resultant robbery, holds “Section 654 of the Penal Code prohibits the imposition of double punishment if either a single act or a course of criminal conduct engaged in with a single objective is charged as the basis of multiple convictions. Under such circumstances, the defendant can be punished only for the

more serious offense. [Citation.]” Penal Code section 654 provides that upon a conviction and sentence on one such related charge a defendant may not thereafter be prosecuted under the other.¹² It would therefore be idle to reverse the “kidnapping for robbery” (§ 209) charge against Beasley.

We note that no rule proscribes multiple prosecution or multiple punishment where, as here, a defendant is charged with himself having directly committed the act of rape and with aiding and abetting¹³ each of two accomplices in their rapes of the same victim.

The present posture of this case results from an illegal “package disposition” arranged between the judge and defense counsel. While ordinarily one may not complain of a result brought on by himself, the fact nevertheless remains that' each defendant has now served time on the convictions following his guilty pleas. The fairest and most just solution of the problem before us would be the restoration of all parties, as nearly as possible, to the positions held prior to the entry of the guilty pleas. This would allow resumption of the action on all counts, untrammeled by the procedural snarls we have encountered in the record. But such a result must depend upon the voluntary withdrawal by defendants of their guilty pleas. A somewhat similar disposition was permitted in People v. Delles, supra, 69 Cal.2d 906, 910-911. If defendants or either of them shall so elect to withdraw the guilty pleas, they may do so. If they or either of them shall thereafter be convicted and sentenced on the charges to which they had previously pleaded guilty, credit for any time served thereon is required by Penal Code section 2900.1.

As to defendant Morris: The order of April 11, 1969, is reversed insofar as it purports to dismiss counts 1, 3 and 4 of the indictment; the order of April 11, 1969, granting probation is reversed.

As to defendant Beasley: The order of April 8, 1969, is reversed insofar as it purports to dismiss counts 2 and 3 of the indictment; as to count 4 the order is affirmed.

Molinari, P. J., concurred.

“An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence 'under either one bars a prosecution for the same act or omission under any other.”

“All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed.”

1 Persons are committed to the California Youth Authority for an indeterminate period (Welf. & Inst. Code, § 1766). Ordinarily they are discharged on or- before age 21, but may not in any event remain there beyond their 25th birthday (id., § 1771).

2 Under the “Cobey Work Furlough Law” (Pen. Code, § 1208) a county jail prisoner is permitted to work at his regular employment, spending all other time in jail. County boards of supervisors may name one of certain designated officials as “work furlough administrator.” In San Francisco the chief adult probation officer is designated as such administrator; his decision determines whether a prisoner will be admitted to the program.

3 This was not the common, and sometimes criticized, “negotiated plea.” Such a plea is “negotiated” between defense counsel and the district attorney. It is subject to the tentative approval of the judge who later, upon reading the probation report and obtaining a fuller understanding of the case, may, and frequently does, repudiate the arrangement of counsel and allow the defendant to withdraw his guilty plea (see People v. Delles, 69 Cal.2d 906, 910 [73 Cal.Rptr. 389, 447 P.2d 629]).

4 OR means Own Recognizance, a procedure under which a defendant is released pending trial or sentence without giving bail. (See Pen. Code, § 1308 et seq.)

5 As to Morris this report contained, among other things, a statement by defendant Morris of the circumstances surrounding the events leading up to the charges in this case; a narrative of the social factors pertaining to Morris’ background, education, employment, financial condition and marital status; letters from interested parties recommending for and against probation; the probation officer’s evaluation of the case; and a letter from Lois requesting that probation be denied. In her letter Lois stated that she had not been able to resume her work; that she had not been out of the house alone since the assaults; that she could not get over the fear of someone choking and dragging her off; that her parents had sold the home in which they had lived for 22 years and moved away from San Francisco because they no longer felt safe in the city.

6 The record shows the following to have occurred:

“[Judge Glickfeld] : I think it’s a lousy deal when an inspector has to sit with a client. The district attorney ought to advise the inspector. I think it is ridiculous. Inspector Christensen, can I see you a moment. Is there some reason you have to sit here, or don’t you have enough work to do?

“Inspector Christensen: I was instructed to go down with this young lady by the lieutenant of my detail.

“[Judge Glickfeld] : Who?

“Inspector Christensen: Lieutenant Flahaven.

“[Judge Glickfeld] : Who gave him the instructions? Bring Lt. Flahaven down here. I never heard of a sentencing procedure where people have to be in court with a policeman holding their hand. [There was no holding of hands; as later indicated by the judge the term was used figuratively.] Tell the lieutenant I want to talk to him.

“Mr. Norman [the district attorney]: Well, your Honor, I don’t think that this is a fair remark.

“[Judge Glickfeld] : Mr. Norman, I am not going to listen to what is a fair remark in view of what you did to the court a few weeks ago. I don’t want to hear that. I want Lt. Flahaven down here. That is the way it is going to be. And I don’t want to hear about what a fair remark is. There are lots of things that are not fair.

“Mr. Norman: For the record I don’t think it was.

“[Judge Glickfeld]: I don’t want police inspectors sitting here in court holding some alleged victim’s hands, and I am using the term figuratively. And I. want Lt. Flahaven down here. I want to know where these instructions came from. There is lots more work for the police to do in the county than sit here in this court. I want to know who gave the instructions, so bring him down here.”

7 The full text of Penal Code section 1204 follows:

“The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section.”

Reference to the “preceding section” is to section 1203. When section 1204 was enacted in 1872 the preceding section was 1203. Since then the Legislature has inserted several additional sections 1203.01-1203c) between sections 1203 and 1204.

8 Penal Code section 487 defines grand theft.

9 Under the Work Furlough program Morris would spend weekends and nights in jail. Under the probation order as made he would spend only weekends in jail.

10 She did not testify at the probation hearing.

11 We, of course, make no determination or suggestion as to penalty upon future proceedings in the superior court. Such a decision is in the exclusive province of that court.

12 The exact language of the pertinent portion of Penal Code section 654 is:

13 Penal Code section 31 as pertinent here provides: ^