283 P. 931 | Cal. | 1929
Lead Opinion
The petitioner applies for a peremptory writ of mandate to be directed to the Superior Court, in and for the County of Los Angeles, and the judge thereof, commanding said court to entertain, hear and determine the application of petitioner for probation, under the provisions of section
Section
"After plea or verdict of guilty, where discretion is conferred upon the court as to the extent of the punishment, the court, upon oral suggestions of either party, or of its own motion, that there are circumstances which may properly be taken into view, either in aggravation or mitigation, of the punishment, may in its discretion, refer the same to the probation officer, directing said probation officer to investigate, and to report, recommending either for or against release upon probation, at a specified time, and the court shall hear the same summarily at such specified time, and upon such notice to the adverse party as it may direct. At such specified time, if it shall appear from the report furnished by the probation officer, or otherwise, and from the circumstances, of any person over the age of eighteen years so having pleaded guilty, or having been convicted of crime, that there are circumstances in mitigation of the punishment, or that the ends of justice shall be subserved thereby, the court shall have power, in its discretion to place the defendant upon probation."
The decision of this court in the Beggs case with relation to the application of the foregoing provision of the Penal Code was a divided opinion, two of the members of this court as then constituted dissenting from the reasoning and conclusion of the main opinion. In the main opinion, while it was apparently conceded that the limitation upon the time within which a convicted defendant would be entitled to apply for probation under the terms of said section arose by implication, it was held that the provisions of said section relating thereto were limited by the terms of sections
From the foregoing considerations we are of the opinion that it was the intention of the legislature by its last amendment of section
Let the writ issue as prayed for.
Langdon, J., Preston, J., and Waste, C.J., concurred.
Concurrence Opinion
I concur in the judgment ordering the peremptory writ, but I cannot agree with the reasoning of the opinion that it was the intention of the legislature by the amendment of section
The effect of the majority opinion is to emphasize and reiterate the doctrine of the dissenting opinion and overrule by indirection the majority opinion in the Beggs case. But I find it unnecessary to overrule that case, either by indirection or otherwise, for I find other changes in section *632 1203 as redrafted in 1927 to indicate an intention to broaden the powers of the trial court in matters of probation, so as to accomplish the obviously beneficial result so greatly stressed in the opinion of Mr. Justice Richards. By the amendment in 1927 it was first declared in effect that the trial court should have power to fix the time when an application for probation should be heard and determined. It was provided that "the court, upon application of the defendant or of the people or upon its own motion, may summarily or at a time fixed, hear and determine . . . the matter of probation," and that "at said time or times fixed by the court, the court may hear and determine such application," with the limitations thereafter provided, none of which is applicable to this case. Assuming that there may be doubts as to the exact extent of the effect of the quoted language of the amendments, such doubts should be resolved in favor of an enlarged power, for the reason that the statute is remedial in its nature and should be liberally construed in favor of the application for probation. This construction does no violence to the judgment of the majority in the Beggs case, which appears to have been a correct solution of the problem on the then state of the law.
Concurrence Opinion
I concur. I am disposed to agree with Mr. Justice Shenk's treatment of the amendments of the Probation Act and their bearing upon the Beggs case. In short, if the legislature by its repeal of language which left the law precisely where it was at the time the Beggs case was decided intended thereby to change the law as declared by the Beggs case, why did it not make some express declaration to that effect? The difficulty I find in bringing myself to the view expressed in the main opinion as to the significance of the changes made in the law lies in the fact that if the legislature of this state was mindful that the doctrine announced in the Beggs case was in conflict with other jurisdictions, as suggested in the main opinion, and its purpose by amending the law was to bring this state within the rule of decisions of other jurisdictions, as argued in the main opinion, why did it not by unmistakable language fully and definitely complete its purpose? *633
I am, however, inclined to liberalize the law to the extent that the motion for probation may be entertained by the trial court at any time before execution of the sentence.