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District Court of Appeal, Second District, Division 1, California.

Alexander L. OSTER, Petitioner and Appellant, v. THE MUNICIPAL COURT OF THE LOS ANGELES JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Respondent.

Civ. 20229.

Decided: September 27, 1954

Alexander L. Oster, Los Angeles, in pro. per. Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

Petitioner was tried and convicted in respondent court of a violation of section 502 of the Vehicle Code. On May 18, 1951, he was denied probation and was sentenced to one hundred eighty days in the County Jail, thirty days suspended. The judgment of conviction was affirmed on appeal by the Appellate Department of the Superior Court and petitioner was committed.

On December 10, 1951, neither petitioner nor the people being represented, the respondent court modified the sentence of May 18th, ‘to time served (60 Days) and defendant ordered released. Defendant placed on probation for three years from date of original sentence, under the following conditions: (naming them)’

Thereafter, by a petition for writ of review addressed to the Superior Court of Los Angeles County, petitioner alleged that the respondent court in placing him on probation for a period of three years exceeded its jurisdiction, and prayed for an annulment of that condition of the order of modification.

Upon hearing had on the return to the writ, the Superior Court annulled the entire order of December 10th. From the judgment which followed petitioner appeals.

It is here urged that the Superior Court should have annulled only that part of the order which placed appellant on probation for the period of three years.

Appellant argues that the original judgment of May 18th that he serve one hundred eighty days followed by the order ‘thirty days suspended’ must be regarded as a probationary order, citing In re Torres, 86 Cal.App.2d 178, 179, 194 P.2d 593; In re Herron, 217 Cal. 400, 404–405, 19 P.2d 4.

A court has no power to suspend a sentence, except as a part of granting probation. Penal Code, § 1203.1. It is true, however, as decided in the two cases cited by appellant, that when a court in passing sentence does suspend all or part of it, this is considered to be an informal grant of probation. But, that rule does not apply when such order is made after the court has denied probation.

As said in People v. Rickson, 112 Cal.App.2d 475, 481, 246 P.2d 700, 704;

‘Had the trial court not considered defendant's formal application for probation and denied it, the effect of the suspended three months sentence might have constituted a probation order, In re Herron, 217 Cal. 400, 19 P.2d 4, but where there is an application for probation, a hearing had upon it, and an express denial of probation, there is no room for an implication or construction of the immediately following order suspending part of the sentence, and according to Ellis v. Department of Motor Vehicles, 51 Cal.App.2d 753, at page 757, 125 P.2d 521, it is said that in such a case, where the court does not act under the probation law, it has no power to suspend execution of any part of the sentence, and an order purporting to do so is void.’

In the instant case, the respondent court denied appellant's application for probation before it made the order purporting to suspend thirty days of the sentence. As a result, that part of the order of May 18th was void.

Because probation may only be granted before execution of the sentence is begun, In re Bost, 214 Cal. 150, 4 P.2d 534, the order of December 10, 1951, did not constitute a grant of probation. This for the reason that appellant had already served sixty days of his sentence at the time such order was made.

For the reasons stated, the judgment appealed from is affirmed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.