265 P. 392 | Cal. Ct. App. | 1928
This is a petition for the writ of habeas corpus on behalf of Elsie Richmond and Anna Nachnaber, who on June 30, 1927, plead guilty to an information charging them with having committed a burglary on May 13, 1927. After the plea was entered and prior to July 14, 1927, they filed a written application for probation which was continued from time to time until September 14, 1927, on which day the court ordered "that the proceedings be suspended and that the defendants be granted probation for *531 a period of five years under the supervision of the probation officer and subject to the terms and conditions stated by the court, the first six months of said period, defendants shall be confined in the County Jail of the County of Los Angeles."
Petitioner asserts that the portion of the order directing the confinement of the defendants in the county jail is void under the authority of People v. Mendosa,
By the amendment of 1927 trial judges were vested with broad discretionary powers, and had the offense been committed subsequent to the going into effect of the amendment, no question could be raised concerning the validity of the order. Inasmuch as the offense was committed, the plea was entered and application for probation was filed prior to the time the section as amended took effect, petitioner asserts that the court had no authority to order the confinement of the defendants upon granting probation for the reason that the amendment violates the constitutional guaranty against ex post facto laws, in its application to offenses committed prior to the time it took effect, to wit, July 29, 1927. His contention is that the punishment for the offense is increased or aggravated by the provisions of section
"[The court may impose and require any or all of the above mentioned terms of imprisonment, fine and conditions and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law; for any injury done to any person resulting from such breach and generally and specifically for the reformation and rehabilitation of the probationer; provided, that if the probationer should violate the terms and conditions of his probation and the court should deem it just or necessary to revoke such probation, then and in that event any period of time which such probationer may have served in jail or other detention place or any fine paid, under the terms and conditions of his probation, shall be taken into consideration as a part of his punishment, and he shall have a credit therefor to be deducted from his term of confinement or from the amount of any fine imposed upon final judgment. Upon the defendant being released from the county jail under the terms of probation or sooner by order of court, and in all cases where he is not confined in the county jail at the time of granting probation, the court shall place the defendant in and under the charge of the probation officer of the *533 court, during such suspension or period of probation; provided, however, that upon the payment of any fine imposed and the fulfillment of all conditions of probation, probation shall cease at the end of the term of probation, or sooner, in the discretion of the court. In counties and cities and counties in which there are facilities for taking finger prints, such marks of identification of each probationer must be taken and a record thereof kept and preserved.]" (Amendatory words are in brackets.)
In our opinion, it is unnecessary for us to extensively review here the long list of authorities relied upon by petitioner for the reason that our analysis thereof confirms the view we entertained, when with respect to a somewhat similar contention we recently said: "The real question to be framed is whether the person accused has been deprived of a substantial right by reason of the change." (People v. Edenburg,
Writ discharged and Elsie Richmond and Anna Nachnaber remanded.
Works, P.J., and Craig, J., concurred.