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116 Cal. App. 3d 284

People v. Marling

California Court of Appeal

Decided February 26, 1981

California Court of Appeal · decided 1981-02-26

Key passage — most relied on by later courts

““Because contrary conclusions were contained in the probation report and reports from two psychiatrists, and the court’s familiarity with the case gained during Marling’s trial, the court expressed doubt as to the validity of the diagnostic conclusion. “Recognizing it was not bound to follow the CYA recommendation, (People v. Carl B. (1979) 24 Cal.3d 212 , 218-219 . . .), but wishing to give Marling every opportunity to show why its conclusion should be followed, the court had all CYA personnel who participated in preparing the report appear at sentencing for an examination lasting two and one-half days. “The court alternatively ruled Marling ineligible for commitment to CYA because he had been convicted of first degree murder and, after reviewing all the evidence, determined a prison commitment was appropriate.” (Id. at p. 286.)”

quoted by 1 later decision, including 193 Cal. App. 3d 1423 - People v. Campo

““Marling accurately describes the court as being most skeptical of the soundness of the diagnostic study recommendation, the methodology of its preparation and the reliability of information on which it was based. However, contrary to Marling’s assertion, the court’s decision not to commit him to CYA was based on substantial evidence neither he nor society would materially benefit from such a commitment. Before sentencing the court reviewed the evidence in light of sentencing objectives contained in California Rules of Court, rule 410. There was no abuse of discretion.” (Id. at p. 287.)”

quoted by 1 later decision, including 193 Cal. App. 3d 1423 - People v. Campo

Relies on 22 Cal. 3d 749 - People v. Arbuckle · 28 Cal. 3d 210 - In Re Jeanice D. · 24 Cal. 3d 212 - People v. CARL B.

Good law ✅— No negative treatment on recordhow we know

Decided 1981-02-26

How this case has been cited

Cited by 6 later decisions — most recently May 2014

2 federal appellate · 4 state decisions

301981199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Opinion

WORK, J.

¶2Bobby Earl Marling, a 17-year-old first degree murderer sentenced to prison, unmeritoriously claims the sentencing court erred *286in refusing to commit him to the California Youth Authority (CYA), or at least to refer him for a second diagnostic evaluation, and in failing to adjourn criminal proceedings to evaluate him as a mentally disordered sex offender (MDSO).

¶3Facts of the Offense

¶4Related most favorably to the prosecution the facts show Marling and companions selected a male adult to rob and kill. Marling seduced the victim by his promise to engage in homosexual activities. When in private, Marling stabbed his victim to death with a knife he procured for that very purpose, and then stole the victim’s possessions. No homosexual activity occurred nor was intended by Marling.

¶5Sentencing

¶6Marling is the first person convicted of first degree murder to be referred to CYA for a diagnostic study. (Welf. & Inst. Code, § 707.2.) In due course a report concluding he was amenable to CYA programming was submitted.

¶7Because contrary conclusions were contained in the probation report and reports from two psychiatrists, and the court’s familiarity with the case gained during Marling’s trial, the court expressed doubt as to the validity of the diagnostic conclusion.

¶8Recognizing it was not bound to follow the CYA recommendation, (People v. Carl B. (1979) 24 Cal.3d 212, 218-219 [155 Cal.Rptr. 189, 594 P.2d 14]), but wishing to give Marling every opportunity to show why its conclusion should be followed, the court had all CYA personnel who participated in preparing the report appear at sentencing for an examination lasting two and one-half days.

¶9The court alternatively ruled Marling ineligible for commitment to CYA because he had been convicted of first degree murder and, after reviewing all the evidence, determined a prison commitment was appropriate. It then found no evidence the crime was sexually motivated, denied Marling’s request to initiate MDSO proceedings, and committed him to prison.

¶10*287Marling Was Not Ineligible for Commitment to Cya

¶11We have recently been informed by the Supreme Court that on this issue the sentencing court guessed wrong; that a 25-year-to-life sentence for first degree murder is an indeterminate commitment permitting CYA placement pursuant to Welfare and Institutions Code section 1731.5. (In re Jeanice D. (1980) 28 Cal.3d 210 [168 Cal.Rptr. 455, 617 P.2d 1087].) So be it.

¶12Marling’s Prison Commitment Was Not an Abuse of Discretion.

¶13In a commendable display of caution (more significant in light of Jeanice D.) the court proceeded to sentence as if Marling were eligible for CYA confinement giving careful consideration to all relevant sentencing factors before announcing its sentence choice.

¶14The trial court was not required to hold any hearing in which CYA personnel would have the right to appear for examination to support the recommendation. As Marling correctly points out, he would not have been able to initiate such a proceeding over the Attorney General’s objection. (People v. Arbuckle (1978) 22 Cal.3d 749, 755 [150 Cal.Rptr. 778, 587 P.2d 220].) However, he shows no prejudice from the court doing so and we detect none. He fully participated in examining CYA personnel. If Marling wished to expand the list of witnesses and was prevented from doing so we would have no hesitation in finding this to be error, but he made no such request.

¶15Marling accurately describes the court as being most skeptical of the soundness of the diagnostic study recommendation, the methodology of its preparation and the reliability of information on which it was based. However, contrary to Marling’s assertion, the court’s decision not to commit him to CYA was based on substantial evidence neither he nor society would materially benefit from such a commitment. Before sentencing the court reviewed the evidence in light of sentencing objectives contained in California Rules of Court, rule 410. There was no abuse of discretion. (People v. Carl B., supra,24 Cal.3d 212, 217-218.)

¶16The sentence choice was made on relevant factors meticulously recited on the record not, as Marling suggests, because the court was confused by the CYA report or in a moment of pique because of unhappiness with CYA personnel. There is no evidentiary support for *288Marling’s proposition a re-referral to CYA for diagnostic study is necessary.

¶17The Court Properly Refused to Initiate MDSO Proceedings.

¶18As the trier of fact in the guilt phase the court found the killing was premeditated, deliberate and in the course of robbery. Marling denied the slaying; no evidence was submitted showing any sexual motive for it. There was no such evidence contained in any diagnostic or probation report.

¶19However, after sentencing, Marling (inferentially) offered to stipulate the killing was a sexual offense within the meaning of Welfare and Institutions Code section 6302, asked the court to so find and suspend criminal proceedings. He asserts the court must accept his stipulation and disregard facts to the contrary.

¶20In light of recent amendments to the MDSO statutes it is understandable why Marling, facing a lengthy prison term, suddenly finds such a dispositional alternative desirable. (See People v. McCarthy (1980) 110 Cal.App.3d 296 [167 Cal.Rptr. 772].)

¶21Although a rose is a rose, a cactus is not and a stipulation does not make it so. Nor will a unilateral willingness to stipulate a nonsex offense into one achieve such a metamorphosis. There is no error.

¶22Judgment affirmed.

¶23Brown (Gerald), P. J., and Staniforth, J., concurred.

¶24A petition for a rehearing was denied March 16, 1981, and appellant’s petition for a hearing by the Supreme Court was denied May 6, 1981.

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