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


Cr. 4206.

Decided: July 02, 1948

Chotiner & Chotiner, of Beverly Hills, and Leland E. Zeman, of Los Angeles, for appellant. Fred N. Howser, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

Defendant Cabell pleaded guilty to a charge of violation of section 337a, subdivision 2, of the Penal Code, a felony, which offense is commonly known as ‘bookmaking.’ On February 25, 1947, she was sentenced to imprisonment in the county jail for six months, execution of sentence was suspended, and she was granted probation for the period of three years upon condition that she pay a fine of $1,000. On March 17, 1947, the terms of probation were modified to permit defendant to pay the fine at the rate of $50 a month. On September 22, 1947, the court, in the presence of defendant, made an order revoking the order granting probation, for the reason that defendant had failed to make payments on the fine. Defendant appeals from that order.

Appellant's contention, that the fine of $1,000 is in excess of the maximum fine which the court had the power to impose as a condition of probation herein, is sustained. Section 337a of the Penal Code prescribes that the punishment for violation of that section is imprisonment of not less than thirty days and not exceeding one year. That section does not prescribe a fine as punishment. Section 672 of the Penal Code, however, provides as follows: ‘Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding two hundred dollars, in addition to the imprisonment prescribed.’ Section 1203.1 of the Penal Code provides, in part, as follows: ‘The court, * * * in the order granting probation and as a condition thereof * * * may fine the defendant in such sum not to exceed the maximum fine provided by law in such case * * *.’ That section 1203.1 also provides that the court, in granting probation ‘may impose and require any or all of the above mentioned terms of imprisonment, fine and conditions and other reasonable conditions * * *.’ The court, therefore, had the power to impose a fine as a condition of probation, but the amount of a fine which may be so imposed, for violation of section 337a, is prescribed by section 672 and may not exceed $200.

Appellant also contends, in effect, that the condition of probation, whereby she was fined $1,000, was void, and that her failure to make the payments thereon as directed was not, therefore, a violation of probation. Such contention is not sustainable. The fine, as a condition of probation, was valid to the extent of $200. At the time probation was revoked, the following statements were made: ‘The Court: Why haven't you kept up these payments? The Defendant: I haven't the money. The Court: I was told at the time we modified the order that you could make the payment of $50.00 a month. The Defendant: That was with the understanding that the party I worked for was to pay it. The Court: I don't know of any understanding, all we know was that you agreed to make the payments.’ It does not appear that she made any payment, and it is not contended by appellant that she paid $200 or that she paid any amount. It appears from the statement of appellant, at the time probation was revoked, that she never intended to pay any part of the fine, and it appears, on the contrary, that she was depending on some other bookmaker to pay it. The appellant failed to make the payments on the valid portion of the fine, and thereby violated a condition of probation.

Appellant's further contention, that the order revoking probation was arbitrary and without just cause, is not sustained. There is no finality to an order granting probation, and the imposition of a fine as a condition of probation is not a judgment imposing a fine. In re Martin, 82 Cal.App.2d 16, 22, 185 P.2d 645; In re Goetz, 46 Cal.App.2d 848, 851, 117 P.2d 47. Section 1203.2 of the Penal Code provides that ‘at any time during the probationary period’ the court is authorized to revoke an order for probation if there is reason to believe from the report of the probation officer, or otherwise, that the defendant has violated the terms of his probation. ‘The discretion of the court to revoke an order of probation is ‘very broad.’ People v. Silverman, 33 Cal.App.2d 1, 5, 92 P.2d 507, 510. As above shown, it appears that appellant did not intend to comply with the condition imposed.

The order is affirmed.

I dissent. I agree with what is said in the main opinion with the exception of the conclusion, which is erroneous and unsupported by the reasoning of the opinion. Certainly the fine was good to the extent of $200, and the holding that it was not entirely void is unassailable. It would follow, as a matter of course, that since appellant has not paid $200 of the fine she would not be entitled to be released on probation by order of this court, which appears to be the only question considered by my associates. But she does not seek her release; she seeks only a reversal of the order revoking probation, which would return the matter for reconsideration. The opinion does not reach the real question, namely, whether under all the circumstances, and in the interest of justice, the matter of probation should be reconsidered by the trial judge. It is too clear to me to admit of argument that justice can be served in no other manner.

The amount of the fine was fixed at $1,000 after appellant's attorney had explained to the court that it is customary for bookmaker employers to pay the fines, as well as the attorneys' fees, of their employees. Appellant, her attorney, and also the judge understood that appellant could not pay the fine herself. The attorney asked for and was granted time to arrange for the payment of the fine by the employer. Everyone understood that a fine of $1,000 would be legal. The judge understood so when he revoked the order of probation. Appellant had two comrades who might have been expected to assist her, namely, her bookmaker employer and her husband. While the price set upon the lady's liberty would seem to have been beyond the stretch of the chivalry or financial ability, or both, of these two gentlemen, it may be that they only considered the odds to be unattractive and that a fine of $200 would have been paid. Be that as it may, appellant now faces a six months term in jail for failure to pay an excessive fine, without having had an opportunity to retain her liberty by paying a legal fine. The trial judge believed her to be entitled to probation. Inability or unwillingness to pay a $200 fine cannot be assumed from the failure to pay a fine of $1,000. Appellant therefore stands on the threshold of the jail by reason of a judicial error. It is due to the able trial judge that he be given an opportunity to correct this error, and I am confident that no one would more readily or willingly correct a mistake that threatened to work an injustice. I can see nothing but injustice in sending appellant to jail because of her failure to pay an excessive fine, without giving her an opportunity to pay a legal fine and thus retain her liberty. With an obviously dim comprehension of what was going on in the skilled legal minds of the gentlemen who were conducting the proceedings, was she the one, and the only one, who should have known the law? Is she the one whose duty it was to see that the law was properly administered? Affirmance of the order would say so, and would leave her to suffer the consequences of the mistake, while the court, the district attorney, the probation officer, and appellant's attorney, all officers of the court and all equally guilty of the mistake, are given no opportunity to rectify it.

The order should be reversed and the court should proceed in the matter of probation as upon an original application.

WOOD, Justice.

McCOMB, J., assigned, concurs.