In Re Andrews

I respectfully dissent and suggest that the majority err in two separate respects. First, they adopt a construction of Penal Code section 1202b which substantially restricts the discretion of the sentencing judge in dealing with youthful offenders, contraiy to the probable legislative intent underlying the section. Second, they compound the error by extending the benefit of their construction of section 1202b to the petitioner notwithstanding the fact that the sentencing judge in very express terms declined to invoke that section to reduce petitioner’s minimum sentence to a bare six months and instead, at the urging of petitioner’s counsel, selected a minimum term of five and one-half years rather than the ten-year minimum otherwise prescribed by law. If, as the majority hold, the judge erred in assuming he had the authority under section 1202b to select a minimum term of five and one-half years, then either petitioner’s sentence should be modified to a ten-year minimum, or else a new sentencing hearing should be held to determine whether or not a six months minimum term should be imposed under section 1202b, thereby preserving the sentencing court’s discretion.

1. Construction…

By petition for writ of habeas corpus petitioner challenges the part of a judgment sentencing him to a term of imprisonment that purports to limit the effect of sentencing under Penal Code section 1202b 1 to a term imposed for the offense of robbeiy, while leaving unaffected an additional, consecutive term imposed upon a finding that he used a firearm within the meaning of section 12022.5. 2

Pursuant to a plea bargain whereby a charged violation of section 217, an allegation that he caused great bodily injury to the robbery victim, *211 and an allegation that he had suffered prior felony convictions were dismissed, petitioner pleaded guilty to first degree robbeiy (§§ 211, 213), and admitted the truth of allegations that he had been armed (§ 12022) with, and had used (§ 12022.5) a firearm in the commission thereof. 3 The sentence to be imposed was not a condition of the bargain.

On September 27, 1972, the court sentenced petitioner to a term of imprisonment for the robbeiy, invoking section 1202b, and to a consecutive term of five years to life under section 12022.5 because he had used a firearm. Counsel had argued on behalf of petitioner that because petitioner’s…

By petition for writ of habeas corpus petitioner challenges the part of a judgment sentencing him to a term of imprisonment that purports to limit the effect of sentencing under Penal Code section 1202b [1] to a term imposed for the offense of robbery, while leaving unaffected an additional, consecutive term imposed upon a finding that he used a firearm within the meaning of section 12022.5. [2]

Pursuant to a plea bargain whereby a charged violation of section 217, an allegation that he caused great bodily injury to the robbery victim, and an allegation that he had suffered prior felony convictions were dismissed, petitioner pleaded guilty to first degree robbery (§§ 211, 213), and admitted the truth of allegations that he had been armed (§ 12022) with, and had used (§ 12022.5) a firearm in the commission thereof. [3] The sentence to be imposed was not a condition of the bargain.

On September 27, 1972, the court sentenced petitioner to a term of imprisonment for the robbery, invoking section 1202b, and to a consecutive term of five years to life under section 12022.5 because he had used a firearm. Counsel had argued on behalf of petitioner that because…