PEOPLE v. JACKSON (1975)

Appellant-defendant Calvin Jackson and codefendant Raymond Lee Hadnot¹ were charged with receiving stolen property, in violation of Penal Code section 496. After initially having pled not guilty, Jackson withdrew his plea and entered a plea of guilty. On February 1, 1973, sentence was suspended and he was placed on probation for five years, subject, inter alia, to a condition that he spend one year in county jail. He spent from February 1, 1973 to August 10, 1973 (184 days) in county jail. On August 10, 1973, that condition was terminated and Jackson was released, subject to the other conditions of probation. On November 26, 1974, after several appearances before the trial court involving alleged probation violations, Jackson was continued on probation subject to the other specified conditions. On February 28, 1974 nearly four months after probation was continued, Jackson was charged with a new violation of probation, and after a hearing, the terms of probation were modified to require that Jackson serve eight successive weekends² in county jail, and that he enroll in an anti-drug abuse program as an out-patient. Jackson served the first of such weekends in custody, but failed to report thereafter. As a result, on March 21, 1974 probation was revoked and a bench warrant was issued. On April 26, 1974, probation was reinstated on the terms previously imposed. Less than a month after the prior court appearance, probation was revoked and another bench warrant was issued for Jackson's arrest. On October 21, 1974, after Jackson was picked up pursuant to the bench warrant, his probation hearing was continued, on the court's motion, for three weeks, during which period the court declined to set bail. On November 22, 1974, a probation violation hearing was continued pending disposition of another case then pending against Jackson which was supposed to be tried within the next four to five weeks. The court also denied Jackson's motion to be released on his own recognizance. On February 20, 1975, after numerous continuances due to the pending criminal charges (which were eventually dismissed), the court reinstated Jackson's probation and extended it for a period of five more years from that date, with various conditions, including a new, one-year county jail term. Jackson has remained in county jail under this condition since at least April 1975, and his total time spent in the county jail exceeds one year.³ Jackson appeals from the probation order of February 20, 1975.

Contentions

In addition to contentions of violations of his right to due process because of alleged improper procedures by the court, appellant contends that “the trial court abused its discretion in ordering five years' additional probation and a new county jail sentence of one year …, and in refusing credit for four months served in county jail.”

Notwithstanding the possible merits of appellant's contentions relating to alleged improper procedures by the court, we believe that the dispositive issue in this case is whether the trial court exceeded its jurisdiction under Penal Code section 19a when it imposed the new condition of probation that appellant spend additional time in county jail, thereby increasing the total time to be served by appellant in county jail so as to exceed one year.⁴ Under the facts of this case, we conclude that Penal Code section 19a, read together with sections 1203.1 and 496, prohibits the trial judge from having appellant confined in county jail for more than one year. Any additional confinement must be in state prison.

Discussion

The original probation period of five years is authorized by statute, as is the condition that appellant spend the first year in county jail. (Pen.Code §§ 19a, 496, and 1203.1.) Section 1203.1 provides in pertinent part:

“․ The court, or judge thereof, in the order granting probation and as a condition thereof may imprison the defendant in the county jail for a period not exceeding the maximum time fixed by law in the instant case; ․

․ [S]hould the probationer violate any of the terms or conditions imposed by the court in the instant matter, it shall have authority to modify and change any and all such terms and conditions and to reimprison the probationer in the county jail within the limitations of the penalty of the public offense involved․” (Emphasis added.)

While under Penal Code section 496 appellant may be sentenced to state prison for not more than ten years, he may not be required to be incarcerated more than one year in the county jail (Pen.Code § 19a) as a condition of probation (People v. Rojas, 216 Cal.App.2d 819, 829, 31 Cal.Rptr. 417). Under Penal Code section 1203.1, as a condition of probation, the judge may imprison a defendant in a county jail for not more than “the maximum time fixed by law.” The “maximum time fixed by law” means the maximum term of imprisonment in the state prison (Id. at 829, 31 Cal.Rptr. 417); in the instant case, it is ten years (Pen.Code § 496). However, Penal Code section 19a, as amended, provides a maximum term of one year in county jail “as a condition of probation upon conviction of either a felony or a misdemeanor … [for a single offense].” (See also, People v. Brasley, 41 Cal.App.3d 311, 316-317, 115 Cal.Rptr. 910.)

Thus, sections 1203.1, 496, and 19a, read together, allow the imposition of only one year's (cumulative) time in the county jail on one count as a condition of probation. Consequently, the trial court exceeded its jurisdiction by imposing another year in county jail as a condition for probation when it was clear that such a condition would extend appellant's total time in county jail so as to exceed the one year statutory limitation of section 19a.

Respondent contends that under sections 1203 and 1203.2 the trial court is authorized to impose “a new five year period for a violation of probation so long as the total probationary period served from both does not exceed the maximum ten year sentence permitted for receiving stolen property,” and that “section 1203.2 makes clear that when probation is revoked for good cause, then reinstated, the trial court ‘… may again place the person on probation for such period and with such terms and conditions as it could have done immediately following conviction.”’ (Emphasis original.)

Section 1203.2, in pertinent part, provides: “If an order setting aside the judgment, the revocation of probation, or both is made after the expiration of the probationary period, the court may again place the person on probation for such period and with such terms and conditions as it could have done immediately following conviction.” (Emphasis added.) It is apparent that respondent as well as the trial court has misinterpreted and incorrectly relied upon this section to reimpose upon appellant the condition that he spend another one year term in the county jail.

In the absence of a successful probationary performance, section 1203.2 permits the court to place a defendant on probation even though the maximum term for probation has expired where, prior to such expiration, there had been a revocation of probation. (People v. Ottovich, 41 Cal.App.3d 532, 534, 116 Cal.Rptr. 120.) In People v. Carter, 233 Cal.App.2d 260, 43 Cal.Rptr. 440, the trial court had placed the defendant on four years' probation. During the period in which probation was in effect, the trial court revoked probation because the defendant was convicted of a crime in another state. After the defendant's return to California, which was after expiration of his probationary period, the court again placed the defendant on four years' probation. At pages 267-268, 43 Cal.Rptr. at 445-446, the court in Carter discussed the principle underlying section 1203.2 (as amended in 1957),⁵ as follows:

“․ The purpose of the amendment (Pen.Code, § 1203.2) was to liberalize the rule and permit the court not only to retain the right to impose sentence at a subsequent time, but also to extend the original term of probation to the maximum time for which it could have been originally fixed in lieu of sentencing or, as an alternative, to grant a completely new term of probation without reference to the length of the original term or time served under it. As would the original, the period of the new term would be limited in time only by the length of the maximum period for which the defendant could be sentenced for the original offense.”

(See also People v. Ottovich, supra, 41 Cal.App.3d at 535, 116 Cal.Rptr. 120; People v. Gish, 230 Cal.App.2d 544, 41 Cal.Rptr. 155.) In Carter, probation was revoked during the original period that probation was in effect, and then, after the original period of probation had expired, the order revoking probation was set aside and the defendant was again placed on probation. This sequence of events brought the defendant in Carter within the provisions of section 1203.2. However, in the instant case, appellant's probationary period had not expired at the time of the court's order setting aside the order of revocation of probation. Therefore, section 1203.2 is inapplicable to the case at bench.

The judgment (order of probation dated February 20, 1975) is reversed and the cause is remanded for the resentencing of appellant in accordance with the views expressed in this opinion.

FOOTNOTES

1.  Codefendant was also charged with eight other counts. He is not a party to this appeal.

2.  A weekend was defined as starting at 8:00 p. m. on Friday and ending at 8:00 p. m. on Sunday.

3.  The total number of days which Jackson served in county jail is not clear from the record. However, it is manifest that he has spent in excess of one year in county jail—i.e., February 1, 1973 to August 10, 1973: 184 days; October 21, 1974 to March 1975: approximately 132 days; April 1975 to December 1975: approximately 260 days—for an approximate total of 566 days.

4.  We conclude that the extension of the period of probation was within the power of the trial court since the total period of probation does not exceed “the maximum possible term of such sentence” which here would be 10 years. (See Pen.Code § 1203.1.) Defendant had spent more than the maximum one year in the county jail as a condition of probation and therefore could not be required to serve additional county jail time.

5.  The pertinent part of section 1203.2 remains essentially similar despite another amendment of the section in 1970; hence, this language is still applicable.

STEPHENS, Associate Justice.

KAUS, P. J., and ASHBY, J., concur.