PEOPLE v. ROBINSON

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

PEOPLE v. ROBINSON.*

Cr. 5059.

Decided: January 27, 1954

Andrew H. McConnell, Samuelson & Buck and Clarence Hengel, Long Beach, for appellant. Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

On September 6, 1951, defendant pleaded guilty to a charge of violating subdivision 3, § 337a of the Penal Code, in that he received, held and forwarded certain moneys to be bet and wagered upon the result of horse races. Defendant's request to file an application for probation was granted.

On November 5, 1951, when defendant was arraigned for judgment, proceedings were suspended and conditional probation granted.

On May 7, 1953, the court found that defendant had violated the terms of his probation, which was thereupon revoked, and judgment was pronounced whereby defendant was sentenced to the county jail for the term of three months.

This appeal was taken by defendant from the ‘Order’ revoking probation.

Respondent has moved to dismiss the appeal on the ground that an appeal from the order revoking probation in the instant case, made prior to judgment, is not authorized by law.

At the time probation was granted in this case on November 5, 1951, Penal Code section 1237 provided that:

‘An appeal may be taken by the defendant:

‘1. From a final judgment of conviction; an order granting probation shall be deemed to be a final judgment within the meaning of this section;

‘2. From an order denying a motion for a new trial;

‘3. From any order made after judgment, affecting the substantial rights of the party.’

The foregoing section was also in effect at the time probation was revoked and sentence pronounced.

We are satisfied that since the order granting probation is deemed to be, ‘a final judgment within the meaning of’ section 1237 of the Penal Code, it necessarily follows that the subsequent order of May 7, 1953, was one made after judgment, and affecting the substantial rights of appellant, and therefore appealable under subdivision 3 of section 1237 of the Penal Code, People v. Martin, 58 Cal.App.2d 677, 137 P.2d 468.

The notice of appeal was so considered by the trial judge who ordered the clerk's and reporter's transcripts prepared and the same are now before us. In the interest of justice, we shall therefore give consideration to the appeal upon its merits, as being taken from an appealable order made after judgment.

Coming now to a consideration of the appeal on its merits, the clerk's transcript reveals that on May 7, 1953, the order made by the court reads in part as follows: ‘The court finds that the defendant has violated the terms of his probation. Probation heretofore granted is revoked and no legal cause appearing why judgment should not be pronounced, the court pronounces judgment and sentence as to Count I of the information as follows: Defendant is sentenced to the County Jail of the County of Los Angeles for the term of three months, with good time allowed, if earned. County Road Camp is recommended.’

Appellant contends that in revoking his probation the court abused its discretion. It is well established that the discretion vested in the trial court in the matter of revocation of probation is very broad, and where it appears that the defendant has violated the terms of his probation, it may be revoked. Characterized as ‘* * * an act of grace and clemency, which may be granted by the court to a seemingly deserving defendant, whereby he may escape the extreme rigors of the penalty imposed by law for the offense of which he stands convicted’, People v. Hainline, 219 Cal. 532, 534, 28 P.2d 16, 17, probation may be revoked based upon facts presented in an informal charge from which the court has reason to believe that the defendant has violated his probation or is unfit to be at large.

However, in the instant case the transcript of proceedings had at the time probation was revoked reflects the following:

‘The Court: We also have the matter of his violation on the other case. (Referring to the case of People v. Robinson, No. 5060, [266 P.2d 73], this day decided). Of course it is the conviction of this conspiracy that amounts to the violation, if there was one.

‘Mr. Buck: May I say this as to that violation matter, your Honor, that it is our intention to take an appeal on this matter.

‘The Court: I understood that was so.

‘Mr. Buck: Whatever your Honor's judgment and sentence is as to this principal case there is also the violation to consider. If we do take an appeal from this instant case, I suggest if your Honor feels it is proper, the matter of the violation of probation be held in abeyance if there was going to be a recommendation of violation.

‘The Court: Why would you do that? If I sentence him and he appeals and puts up his bond, he can still be free.

‘Mr. Buck: Yes, your Honor.

‘The Court: As I understand it, if the upper court should decide that the conviction was improper, there would be no violation.

‘Mr. Buck: Yes, I am sorry. I was not putting it very well. That is it exactly.’ (Emphasis added.)

Later, the following transpired:

‘The Court: First on the violation. The conviction itself, if it stands, would be a violation. Do you make any argument on that?

‘Mr. Buck: I make no argument.’ (Emphasis added.)

Thereafter, following a discussion between court and counsel as to whether the hearing on the matter of revocation of probation should proceed at that time or be deferred to a future date, the court decided to proceed forthwith. Thereupon, the court advised the accused of his plea of guilty entered in the previous case, that he was ‘placed on probation for two years and as a condition of your probation you were ordered to serve 30 days in the County Jail. It was ordered that you not engage in gambling activities of any kind and you were to obey all rules and regulations of the Probation Department. * * * Since that time in this other case (No. 5060, [266 P.2d 73], conviction reversed this day) you have, that is, Case (Superior Court) No. 152349, upon which I will arraign you for judgment in a few moments, you were charged in two counts, one with conspiracy and one with violating Section 337a of the Penal Code. You were convicted, I believe, of Count 1, which was a conspiracy and you were found not guilty on Count 2.

‘I find that to be a violation of your probation in 140088 and your probation is revoked for that violation. You are sentenced to the County Jail for a period of three months, good time to be allowed if earned, in the road camp or the Honor Farm, which is recommended.’

As heretofore noted, no formal procedure is provided for presenting charges of violation of probation. The court may make an order revoking probation based upon facts presented in an informal charge from which the court has reason to believe that the probationer has violated his probation or is unfit to be at large. However, in the case at bar, the court definitely decided upon revocation of probation granted in the first case because of appellant's conviction on Count I of a subsequently filed information. Such a conclusion is inescapable in the light of the court's statement, ‘As I understand it, if the upper court should decide that the conviction was improper, there would be no violation.’, and again, ‘First on the violation. The conviction itself, if it stands, would be a violation. * * *’

Since the judgment of conviction upon which alone the court predicated its order revoking probation, has this day been reversed, People v. Robinson, 266 P.2d 73, and it is manifest that the court intended that the order of revocation should not be effective, ‘if the upper court should decide that the conviction was improper,’ it follows that the order revoking probation must be set aside.

For the foregoing reasons, the order of May 7, 1953, revoking probation and sentencing defendant to the county jail for three months is reversed.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.