The opinion
SIMS, J., Concurring
I write separately to fall on my sword.
The majority opinion treats with charity People v. Foley (1985) 170 Cal.App.3d 1039 [ 216 Cal.Rptr. 865 ], which I wrote. Although Foley reaches a correct result, its analysis is wrong to the extent it suggests the trial court must always obtain a supplemental probation report where a defendant, who is ineligible for probation, is being resentenced. (See id., at p. 1047.) The Foley analysis is wrong because I inexplicably failed to discover the controlling statute: Penal Code section 1203, subdivision (g).
Needless to say, this is embarrassing. To be sure, there is some comfort in the knowledge that other judges have been imperfect. Some of their remarks were collected by the late Justice Robert Jackson in his concurring opinion in McGrath v. Kristensen (1950) 340 U.S. 162 at page 176 [ 95 *413 L.Ed. 173 at p. 184 , 71 S.Ct. 224 ]. Of these, my favorite is that of Lord Westbury, who allegedly rebuffed a barrister’s reliance upon an earlier opinion of his Lordship with the following: “I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.”
While these words lend some comfort, the fact remains that this is the third time I have had to consider the same issue. I signed People v. Savala (1983) 147 Cal.App.3d 63 [ 195 Cal.Rptr. 193 ], which summarily disposed of the probation report issue in a footnote. Then Foley disapproved the Savala footnote. (Foley, supra, 170 Cal.App.3d at p. 1046 .) Now, in the instant case, the issue surfaces again, like one of George Lucas’s vile monsters, apparently immune from the attacks of mortal judges.
I well know I resemble the man at the fair who needs all three baseballs to knock over the milk bottles. The good coming of all this is the knowledge that, having taken all conceivable sides on the issue, I must certainly at some point have been right. Unfortunately, it too obviously follows that at some point I must also have been wrong. (See Lodi v. Lodi (1985) 173 Cal.App.3d 628, 632 [ 219 Cal.Rptr. 116 ].) Moreover, I am painfully aware that Foley probably caused the preparation of unnecessary probation reports in some cases, and those probation officers and trial judges who were inconvenienced have my apologies.
This court has been of the view that “absolution requires something more than an unadorned confession of [judicial] error, ...” (Taylor v. Jones (1981) 121 Cal.App.3d 885, 890, fn. 3 [ 175 Cal.Rptr. 678 ] (opn. of Puglia, P. J.).) If that be true, then surely my destiny lies in that place to which more than one lawyer has wished that I would go.
A petition for a rehearing was denied November 10, 1986, and appellant’s petition for review by the Supreme Court was denied January 22, 1987.