PEOPLE v. ROJAS (1961)

In a nonjury trial defendants Alexander Aragon Rojas and Joe Hidalgo were found guilty of a charge of receiving stolen property. Rojas was granted probation without imposition of sentence and Hidalgo was sentenced to state prison. On appeal the orders denying their motions for new trial were affirmed. The Supreme Court modified the trial court's finding that defendants were guilty as charged to find them guilty of attempting to receive stolen property and adjudged: ‘The judgment and probation order are reversed and the cause is remanded to the trial court for further proceedings not inconsistent with the views hereinabove expressed, and with directions to enter such lawful judgment or order against each defendant, based on the modified finding, as the court deems appropriate.’ (People v. Rojas, 55 Cal.2d 252, 261, 10 Cal.Rptr. 465, 470, 358 P.2d 921, 926.)

On the filing of the remittitur in the superior court the cause came on for proceedings pursuant to the mandate of the Supreme Court. Rojas was again granted probation without imposition of sentence and Hidalgo was sentenced to state prison for the term prescribed by law. Hidalgo appeals from the judgment. Rojas appeals from the order granting probation which is deemed a judgment for the purpose of appeal. (Pen.Code, § 1237.)

Prior to the trial court's acting in response to the judgment of the Supreme Court, counsel for defendants requested the trial court to refer the matters to the probation officer for a new report. Counsel stated: ‘Well it seems to me, your Honor, it seems to me very important—the important thing is the background and understanding the facts. * * * After all, it it seems to me that the probation report should make some allowance and some reference to these vital and essential and fundamental matters as to whether these defendants, because of the counsel that represented them, were not deprived of their elementary rights.’ The request was denied. Defendants assert the court abused its discretion. It is argued the probation officer must ‘make an investigation of the circumstances surrounding the crime and of the prior record and history of the defendant’ (Pen.Code, § 1203), and that this should have been done after the Supreme Court had held defendants were not guilty of receiving stolen property but were guilty only of attempting to receive stolen property. Since Rojas was granted probation he has no ground for complaint.

Hidalgo also says the court did not deny his application for probation but proceeded to sentence him to state prison. It is argued it was mandatory for the court to consider and pass on the application for probation. It appears from the reporter's transcript that after much colloquy between court and counsel about the sentence to be imposed, the court sentenced Hidalgo to state prison for the term prescribed by law. The reporter's transcript does not show a denial of probation or a statement by the court that it had considered such report, and there was no statement filed with the clerk of the court as a record in the case that the court had considered such report. On the other hand, the minutes state: ‘Probation denied.’

The question which of the two records is controlling is to be determined from a consideration of the circumstances under which the proceedings were had. (People v. Givens, 182 Cal.App.2d 75, 5 Cal.Rptr. 648, footnote 1.) On our reading of the record the answer is clear: it is obvious the court did not determine Hidalgo's application for probation.

People v. Neal, 108 Cal.App.2d 491, 239 P.2d 38, is in point. In Neal the defendant applied for probation and the probation officer reported. Judgment was pronounced sentencing the defendant to state prison. This court stated (108 Cal.App.2d pp. 493, 494, 239 P.2d p. 40):

‘No order was made granting or denying probation, and no order at all was made with respect to defendant's application for probation. * * *

‘* * * Section 1203 of the Penal Code provides, * * * ‘At the time * * * fixed by the court, the court must hear and determine such application * * * and in connection therewith must consider any report of the probation officer, and must make a statement that it has considered such report which must be filed with the clerk of the court as a record in the case.’ * * * Although the judge indicated that he would deny probation, he made no order denying probation. It does not appear that the judge made a statement that he had considered the report of the probation officer. Under the provisions of section 1203 of the Penal Code, such a statement must be made and filed with the clerk of the court. Defendant was entitled to have his application for probation heard and determined according to the provisions of said section 1203. * * * It does not appear that appellant is ineligible for probation. By reason of the failure of the judge to rule upon appellant's application for probation, the appellant was deprived of a substantial right.'

(Also see People v. Means, 117 Cal.App.2d 29, 31, 254 P.2d 585; People v. Hollis, 176 Cal.App.2d 92, 98–99, 1 Cal.Rptr. 293.)

The punishment for receiving stolen property, of which Hidalgo was originally convicted, is imprisonment in a state prison for not more than 10 years, or in the county jail for not more than one year. (Pen.Code, § 496.) At that time he was sentenced to state prison. He was, in fact, guilty only of an attempt to commit the offense, for which the punishment is for a term not exceeding half the longest term of imprisonment prescribed on a conviction of the offense so attempted. (Pen.Code, § 664.) In view of this fact and the further fact that a considerable period of time elapsed between the original conviction and the modification of the judgment, the court may in its discretion rerefer the matter to the probation officer. A defendant has the right to present evidence in mitigation of his punishment or to assist the court in the determination of his application for probation. (People v. Valdivia, 182 Cal.App.2d 145, 148, 5 Cal.Rptr. 832.)

It is asserted the terms and conditions imposed in granting Rojas' probation are identicial with those imposed when he was granted probation after he had been convicted of receiving stolen property and that this was error. The record does not contain the terms or conditions imposed when Rojas was granted probation after he had been convicted of receiving stolen property. Consequently the point may not be considered. We do not imply that the court was without power to impose the identical terms and conditions. (See Pen.Code, § 1203.1.)

The judgment as to Rojas (order granting probation) is affirmed. The judgment as to Hidalgo is vacated and the cause as to him is remanded to the superior court with instructions that the court consider and determine his application for probation.

VALLEÉ, Justice.

SHINN, P. J., and FORD, J., concur.