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District Court of Appeal, Second District, Division 3, California.

PEOPLE of the State of California, plaintiff and respondent, v. Helen Virginia CABELL, defendant and appellant.

Cr. 4206.

Decided: July 16, 1948

I dissent from the order denying appellant's petition for rehearing. As I understand the main opinion the factual basis upon which it proceeds is that appellant did not pay or intend to pay all or any part of her fine. The record shows only that her attorney declared her inability to pay a fine of $1,000, and represented that the fine to be imposed would be paid by her employer. It was entirely proper for this court to proceed in the brlief that no part of the fine had been paid. It now appears that the record before us was incomplete. In appellant's petition for rehearing she represents that she made three successive monthly payments of $50 each, and that at the time probation was revoked she owed only $50 of a maximum legal fine of $200. The trial court held her in default to the extent of $850. No excuse is offered for the failure to bring to this court the record upon which the trial court made the order revoking probation, and we are not required to afford appellant an opportunity to do so now. But we should not stand upon technicalities when to do so would compel us to render a decision upon a record which we have reason to believe is false or seriously incomplete. We should grant a rehearing and order transmitted here a complete record upon which the trial court acted, including the report of the probation officer which apparently furnished the evidence upon which the trial court based its order. It may be that we would then have before us important evidence, in addition to the fact that $150 of the fine had been paid. It might appear, and in all probability would appear, that appellant would have paid the remaining $50 if she had been given that opportunity. what is our duty in the premises? I have always understood it to be the function of a reviewing court to correct errors of law which have led to a miscarriage of justice. My associates agree that there was error and if they do not believe that justice has miscarried, they must believe that justice has been served. But how has it been served? I do not find in the main opinion any reason for sustaining the order revoking probation unless it be the assumption that appellant would not have paid a legal fine of $200. As I have heretofore pointed out, that is an unjustified assumption. Inability to pay a fine of $1,000 does not prove inability to pay a fine of $200, and much less would it prove inability to pay a balance of only $50. Therefore, the decision of this court affirming the order rests upon an unsound factual basis.

The legal basis of the judgment of affirmance is equally unsound. The decision rests squarely on the presumption that appellant knew the law and therefore knew that she could satisfy the fine by the payment of $200. This is to say, in effect, that the accused is responsible for all of the mistakes of the court and the lawyers, unless at the time they are made he proceeds to have them corrected. Errors of the court are his errors and he cannot later complain of them. With due respect to my associates I must say that this sounds to me like a satire on court procedure. Judges make errors and they correct errors. The error here involved was never called to the attention of the trial judge. I is our plain duty to call to his attention a mistake of law, and by a reversal of the erroneous order open the way for him to correct it.

The order of affirmance is unjust, not only to the appellant, but to the trial judge as well, for, as I have said before, he is one who would not hesitate to correct an error that threatened an obvious injustice. In all fairness appellant should be afforded an opportunity to pay the balance of a legal fine, which I am assuming, for the purpose of this opinion, to be $50, and not $200.

The petition for rehearing should be granted.

SHINN, Acting Presiding Justice.