We pled a defendant to sexual assault on Monday for an agreed punishment of 10 years in prison. Today, the judge appears and announces he is thinking he would grant a motion for shock probation if filed by the defendant. What would you do?
Explain to the judge that you will be required to file a Mandamus action pursuant to CCP Art.42.12 Sec.3g since the defendant is not eligble for probation for sexual assault.
It's a visiting judge, so he probably doesn't care. But, your suggestion is a good one. Under our bizarre case law, I might not be able to appeal the illegal shock probation because the court has held that probation is not a "sentence" and we can only appeal and illegal "sentence."
How about if we just make sure the judge is not the visiting judge when the motion (which was not requested by the defendant) is filed?
I think your idea of avoiding the judge is a good one, John. I had a problem with a visiting judge several months ago and wound up sending a letter to the administrative judge who makes the assignments. The judge's comment clearly shows that he has prejudged the outcome of any motion for shock that might be filed. Wonder if any members of the media would be willing to shine a light on what I have always considered a fundamental flaw in the visiting judge program, the absolute lack of any oversight by the public or the system over what these judges do. At least the elected judge has to answer to the voters every four years.
Well, we all marched into court this morning. At the defense attorney's suggestion, I held off on filing a motion to recuse. Defense attorney notified the judge on the record that the defendant was satisfied with the plea agreement and wanted it followed. Judge asked for some facts describing the offense (he had problems with the consent issue, even though he hadn't heard any evidence about the offense). Then the judge quietly signed the judgment and dropped his shock probation idea.
If there had been any problem, I was prepared to file a motion to recuse, based on the judge's announcement that he would consider a shock probation motion if filed by the defendant.
Tim, I agree with your comment about visiting judges. They have no accountability. This judge even mentioned that he didn't have to worry about getting re-elected.
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