26 P.2d 457 | Cal. | 1933
This is an appeal from a judgment sentencing the defendant to imprisonment in the county jail, *397 after an order revoking defendant's probation. The defendant pleaded guilty to three counts of an information filed against him in the Superior Court of the County of Los Angeles, charging him with three separate violations of the Corporate Securities Act. Thereafter, and on June 16, 1928, the court, without pronouncing any judgment against said defendant, ordered that all proceedings against the defendant be suspended "and defendant granted probation for a period of five years under the following conditions: Defendant must reimburse the investors within one year and shall comply with such other terms as shall be set forth by the probation officer." On January 21, 1930, the court made a further order in the case as follows: "Terms of probation are modified as follows: Defendant is allowed four years to reimburse investors. All other terms of probation are to remain the same." At a hearing before said court, either to modify the terms of said probation, or to determine whether the defendant had violated the terms thereof [the record does not clearly indicate the nature of said proceeding], at which hearing the defendant was present with his counsel, witnesses were examined and evidence was admitted, the court, on June 6, 1932, made the following order: "This defendant having violated the terms of his probation, probation heretofore granted is revoked. No legal cause appearing why judgment should not be pronounced, the court pronounces judgment and sentence as to each of the counts, 1, 6, and 11 of the information." The court then pronounced judgment against the defendant that he be imprisoned in the county jail for the term of two years upon each of said counts, and that the sentences were to run concurrently.
It is from this order and judgment that the present appeal is taken by the defendant.
The grounds of appeal are threefold and may be stated as follows:
1. That the condition contained in said order of probation that defendant reimburse the investors is void and, therefore, the violation thereof did not warrant revocation of probation.
2. That the trial court abused its discretion in finding that defendant had violated the terms of his probation and in revoking the order admitting him to probation. *398
3. That the court had lost jurisdiction to pronounce judgment against the defendant of imprisonment in the county jail for the period of two years and for that reason said judgment was void.
[1] It will be observed that the original and amended order of probation set forth only one condition or term of probation, and that condition was that the defendant should "reimburse the investors". At the hearing at which defendant's probation was revoked, the trial court said, "The only purpose of granting probation was to give him an opportunity to reimburse these people." From this record, the defendant asserts that the sole purpose of defendant's probation was to enable him to make restitution to those whom he had wronged, and that no provision was made, nor was any term or condition imposed by the court which had for its object or purpose the restoration or rehabilitation of the defendant. The defendant contends that the prime, if not the sole, object and purpose of all legislation providing for the probation of persons convicted of crime is to rehabilitate them and thus enable them possibly to become useful members of society. It is admitted that the court may require, as one of the terms upon which a defendant is granted probation, and in fact it is expressly so provided in section
[3] The next contention of defendant is that, conceding the proceedings under which he was admitted to probation were in every way valid, the court abused its discretion in revoking his probation and pronouncing judgment of imprisonment upon him. This contention is based upon the alleged showing of defendant that while he had not complied with the condition of his probation requiring him to "reimburse investors", he conclusively showed at the hearing that he was financially unable to make compliance, although he had done everything within his power so to do. Under these circumstances, the defendant contends that the action of the court in revoking his probation was arbitrary and should not be sustained by this court. It is conceded that in proceedings of this nature the trial court is clothed with a wide discretion in the granting and revoking of the probation of a person convicted of crime. [4] While he may not act arbitrarily in either denying probation or in revoking an order granting probation, yet it would require a very strong showing to justify a reviewing court to set aside an order of court either denying probation in the first instance or revoking probation after it was once granted, upon the ground that the judge had abused his discretion. The defendant has directed our attention to no case decided by the courts of this state, or elsewhere for that matter, in which an appellate court has reversed an order of the trial court in the matter of either granting, denying or revoking probation on the ground that the action of the trial court was arbitrary. We have not discovered any such authority. It does not follow, however, that such a case may not arise or possibly has not arisen, but the dearth of such cases demonstrates the assertion above that only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. For an interesting discussion of this question, see People v. Jones,
In the case of the defendant, as we have seen, his probation was revoked after a hearing before the trial court at which the defendant was present with his counsel. The defendant had an opportunity and did testify fully as to every matter thought to be pertinent by either himself or his counsel. His former counsel testified on his behalf. The probation officer was also present with his report concerning the activity of the defendant while on probation. A transcript of the testimony taken at said hearing has been transmitted to this court for our examination and perusal. We have carefully read it. The proceedings of other hearings before said court relating to the conduct of the defendant since his admission to probation have also been made a part of the record herein by an order of this court, made since the transfer of this cause to this court upon the motion of respondent for the diminution of the record. While we think from this record the trial court upon said full hearing may well have extended the time within which the defendant was required to "reimburse the investors", we are not prepared to say that the trial judge acted arbitrarily or abused the discretion imposed in him by law in revoking the order previously made granting probation. It is true it was shown that defendant was then well along in years, being sixty-nine years of age. He was not in good health, but was then suffering, and for some time past had suffered, from a double hernia. He was in the real estate business, which, during the period of defendant's probation, was shown to be exceedingly inactive. He had made offers to turn over practically all of his property for the purpose of applying the proceeds thereof to the payment of those whom he had defrauded. There was evidence also to the effect that during a considerable portion of said period of time he had been unable to support himself and family by his earnings. The showing thus made by defendant, as we have said, was sufficient to justify the trial court in extending the time of his probation. In fact, we feel free to state *402 that in our opinion, such action on the part of the trial court would have been preferable and more in accordance with the spirit of the humane provisions of our probation laws. However, we are unable to say that in refusing to do so, the trial court acted either arbitrarily or that its action does not find support in the record before us. In the first place, it is evident from the testimony taken at the hearing that the probation officer, who had the supervision of the defendant during his probation, was not favorable to defendant. He was not satisfied with defendant's conduct during his probationary period. There had been accusations made that the defendant, through his wife, had engaged in rather extensive operations in the construction of an expensive apartment house necessitating the use of various sums of money. While the defendant made a detailed denial of such accusations, and apparently explained his actions in that matter satisfactorily to himself and counsel, it is apparent that he did not altogether satisfy either the probation officer or the court that his conduct in this and in other respects was free from criticism. We have already referred to the fact that, upon the motion of the respondent for the diminution of the record, the records of the proceedings of previous hearings before the trial court involving the conduct of defendant while on probation have been forwarded and are made a part of the record on appeal in this action. While there is nothing in these proceedings of any decisive importance, they do show that on more than one occasion before the hearing at which his parole was revoked, defendant's financial entanglements had been the subject of consideration and investigation by the probation officer and the court. Upon this subject a number of reports of the probation officer had been made to the court. The defendant also had during the period of probation filed with the court various statements or reports as to his financial activities and resources. It is quite apparent that for some considerable time before the court revoked defendant's probation, the probation officer had become distrustful of the sincerity of defendant's efforts to comply with the condition of his probation to "reimburse the investors". This is made perfectly clear by the following excerpts taken from the report of the probation officer dated January 26, 1932, "Since then [referring back to his report of July, 1931], *403 the situation has remained as before and no matter what smoke screen he may throw out to confuse the issue, it is evident that the probationer has no intention of complying with the court order, hoping to stall along until June, 1933, when jurisdiction will be lost." Other references might be made to statements appearing in these reports. Some of these are not so unfavorable toward defendant as the one quoted above and in some cases the reports are in defendant's favor. These reports, together with evidence taken at the hearing, were before the court at the time of the revocation of defendant's probation. From this review of the condition of defendant's case as it was then before the court, we are unable to say that the court abused its discretion in revoking the order admitting him to probation. As we have said, a wide discretion in these matters is necessarily lodged in the trial court. The latter is guided in a large measure by the reports of the probation officer. The latter officer is provided by law to assist the court in dealing with probation cases. To hold that the court acted arbitrarily when it based its order of revocation upon the report of its probation officer would do violence to the whole scheme of the law upon the subject of probation. We do not mean to intimate that the court should substitute the judgment of the probation officer in place of its own. The court in the final analysis must act upon its own judgment in these matters. In doing so, it may reject in toto the report and recommendation of the probation officer, and make its decisions in total disregard of that officer and of his recommendations. On the other hand, as is frequently, and we may say, as is usually, the case, the court may adopt a course in harmony with the conclusions reached by the probation officer. In the event it pursues this latter course, its acts can in no way be subject to the criticism that they are arbitrary or without the legal discretion with which the court is invested.
[5] The final contention of defendant is that the court lost jurisdiction to pronounce judgment against the defendant of imprisonment in the county jail. This contention is based upon the assertion that the defendant did not plead guilty to the commission of a felony, and, therefore, the court could only require defendant to remain on probation for a period of two years in this particular case. The *404
defendant pleaded guilty to three separate charges of violating the Corporate Securities Act. Such an offense is punishable by imprisonment in the state prison for five years, or in the county jail for not exceeding two years. (Sec. 18, Corporate Securities Act.) The court by its judgment sentenced defendant to the county jail, thus making the offenses of which the defendant was guilty misdemeanors (sec. 17, Pen. Code), the maximum punishment for which would be two years on each count, or six years in all. The court, however, made the sentence on each count to run concurrently with the sentences in the other two counts, thus fixing the maximum term of his sentence at two years. The defendant at the time judgment was pronounced had been on probation approximately four years. Did the court in this state of the record lose jurisdiction to pronounce said judgment of imprisonment in the county jail? The powers of the court in this respect are governed by the provisions of section
The judgment is affirmed.
Seawell, J., Waste, C.J., Langdon, J., and Preston, J., concurred. Thompson, J., being disqualified, did not participate herein.
Rehearing denied. Thompson, J., being disqualified, did not participate.
