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


Cr. 3721.

Decided: February 01, 1944

Gladys Towles Root, of Los Angeles, for appellant. Robert W. Kenny, Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondent.

The defendant appeals from a judgment which was entered against him under unusual circumstances. By an information filed April 13, 1937, he was charged in two counts with separate offenses of petty theft committed after a prior conviction of petty theft and service of a term of imprisonment therefor. He pleaded guilty to Count I of the information on April 16, 1937, and applied for probation. On April 30, 1937, the court made an order “that proceedings as to Count I of the information be suspended and defendant is granted probation for a period of two years” on conditions not important here. Count II of the information was at the same time dismissed. Under date of June 14, 1938, the minutes of the trial court show the following proceedings against defendant in this case: “In the following cases violation of probation is filed. Bench warrant is issued. Probation is revoked and matters are placed off calendar.” The next event affecting defendant is chronicled in the minutes of May 3, 1943, which show defendant with his counsel present and “hearing on violation of probation” continued to May 10, 1943. On the last mentioned date the minutes show that, defendant and his counsel being present, “the former order revoking probation is affirmed, and no legal cause appearing why judgment should not be pronounced, the Court pronounces judgment and sentence as follows * * *.” The judgment thus pronounced is the subject of this appeal and since no objection is made to its form or substance we do not copy it.

Section 666 of the Penal Code provided, at the time of the offense charged and until its amendment in 1939, that the punishment for that offense was imprisonment in the state prison not exceeding five years. The judgment appealed from here was pronounced more than five years after the order granting probation and defendant's point on appeal is that after the expiration of that time the court had no jurisdiction to pronounce judgment against him.

Section 1191 of the Penal Code, as it read at the date of the order granting probation, provided that the court must pronounce judgment not more than five days after the verdict or plea of guilty, but might extend this time, where probation was being considered, for twenty days, and on defendant's request for not more than 90 days additional. Here the order of probation was made 14 days after the plea, but no judgment was then pronounced. Instead, the court ordered that “proceedings”––which included the pronouncing of judgment––be suspended for two years. This was in accordance with section 1203.1 of the Penal Code which provided that the court “in the order granting probation, may suspend the imposing, or the execution of the sentence and may direct that such suspension may continue for such period of time not exceeding the maximum possible term of such sentence, except as hereinafter set forth, and upon such terms and conditions as it shall determine.” The exception set forth does not affect this case. The word “sentence” in this provision is equivalent to “judgment” (People v. Lopez, (1941) 43 Cal.App.2d Supp. 854, 864, 110 P.2d 140) and the provision therefore authorizes a suspension of the pronouncement of judgment. Where such a suspension is made under section 1203.1 the limitations of section 1191 have no further application to the case, but the power of the court to pronounce judgment is governed by sections 1203.2 and 1203.3 of the Penal Code.

Section 1203.2 provides, in part, as follows: “At any time during the probationary period of the person released on probation in accordance with the provisions of these sections, any probation or peace officer may without warrant, or other process, at any time until the final disposition of the case, re–arrest any person so placed on probation under the care of a probation officer, and bring him before the court, or the court may in its discretion issue a warrant for the re–arrest of any such person and may thereupon revoke and terminate such probation, if the interests of justice so require, and if the court in its judgment, shall have reason to believe from the report of the probation officer, or otherwise, that the person so placed upon probation is violating any of the conditions of his probation, or engaging in criminal practices, or has become abandoned to improper associates or a vicious life. Upon such revocation and termination the court may, if the sentence has been suspended, pronounce judgment after said suspension of the sentence for any time within the longest period for which the defendant might have been sentenced * * *.” The power of the court to revoke probation is limited by this section and also by section 1203.3 of the Penal Code to a time within the period of probation. Here the original order revoking probation was made within this time limit, but judgment was not pronounced until after the probationary period had expired.

The provision of section 1203.2 that “Upon such revocation and termination the court may, if the sentence has been suspended, pronounce judgment after said suspension * * *” fixes no exact time for pronouncement of judgment and must be construed with other provisions of law on the same subject. “Upon” may mean before, after, or simultaneously with, according to its context and the purpose of the provision in which it is used. (46 C.J. 1096.) Here it undoubtedly means “after,” but does not carry with it the idea of immediate action. In section 1203.3, however, we find a provision which clearly fixes a limit of time after which, in probation cases, judgment cannot be pronounced. That section, after authorizing a revocation, modification or change of a probationary order “during the term of probation,” and a termination of probation at any time when “the good conduct and reform” of the probationer warrant it, goes on to provide that “in all cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections.” The provision last quoted is very much like the provision of section 583 of the Code of Civil Procedure that an action not brought to trial within five years “shall be dismissed.” Both provisions contain the word “shall,” which is usually mandatory (57 C.J. 548). The provision of the Code of Civil Procedure has been uniformly held to be mandatory, depriving the court of jurisdiction to act otherwise than by dismissing the action, in cases to which it applies. (Wells Fargo & Co. v. City & County of San Francisco, (1944) 62 Cal.App.2d –––, 144 P.2d 415; Andersen v. Superior Court, (1921) 187 Cal. 95, 97, 200 P. 963; Superior Oil Co. v. Superior Court, (1936) 6 Cal.2d 113, 116, 56 P.2d 950). The provision of section 1203.3 of the Penal Code, here in question, is manifestly intended to effect a similar purpose, that of putting a limit on the time during which an action may be kept alive and a judgment may be rendered therein. It should receive a like construction, and must be regarded as mandatory. It must be noted that the provision of section 1203.3 refers to both the revocation of probation and the pronouncement of judgment, requiring both to happen during the term of probation or its extension, in order to prevent the discharge of the defendant. Here no judgment was pronounced during the time thus limited. The judgment pronounced later was therefore beyond the jurisdiction of the court.

The jurisdictional nature of the limitation declared by section 1203.3 prevents the application here of the rule applied to judgments pronounced after the expiration of the time fixed by section 1191, that since that section provides for a mere matter of procedure not going to the jurisdiction of the court, a delay beyond the time fixed will not result in a reversal unless a miscarriage of justice appears. (For the rule under section 1191, see People v. Chan Chaun, (1940) 41 Cal.App.2d 586, 594, 107 P.2d 455.)

The judgment is reversed and the trial court is directed to discharge the defendant from custody.

SHAW, Justice pro tem.

SHINN, Acting P. J., and PARKER WOOD, J., concur.

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Docket No: Cr. 3721.

Decided: February 01, 1944

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

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