*1 Aug. No. 4541. In Bank. [Crim. 1944.] PEOPLE, THE Respondent, WILLIAMS, LESTER
Appellant. Gladys Appellant. Towles Root for Robert Kenny, Attorney General, W. Frank Richards and David Lener, Deputies K. Attorney Howser, Fred General, N. Sullivan, District At- Deputy J. Attorney, and Jere District Respondent. torney, for judgment pro appeal an This is
GIBSON, C. J. revocation of nounced *2 after charged petty theft committed was
Defendant imprisonment there- and like offense conviction prior imposition of sentence guilty, Upon entry plea of a for. probation for a placed on suspended he was was and 1938, August March, 9, 1937. In years commencing of two Arizona, and served forgery in defendant was convicted 14, 1938, eighteen On June prison. months the state probation was period, defendant’s probationary within the penitentiary, in the Arizona and, revoked as he was then his release After placed the matter was off calendar. a federal authorities, defendant served a Arizona May brought the trial court on He before penitentiary. was revoking his was 10, 1943, at which time the order appealed here from was judgment confirmed and nounced. it was not urged is invalid because
It is period. until after pres governing The code sections the determination problem 1193, 1202 and 1203-1203.3 of ent are sections 1191, 30, 1937, Penal 1191, April Code. Section it read when placed provided that defendant was pronounce judgment less than two nor more than must not might extend days guilty, five but plea verdict or desig being for a this time where was considered days. nated number of Within four months after judg pronouncement of the granted, prior August 27, 1937), ment, (effective section 1191 was amended plea or here, provide so far as material that “After guilty appoint . . must a time verdict of pronouncing judgment, two, not be less nor than days guilty; plea than five after the or . . . more verdict proceedings extend the until furthermore disposed (Ital 1203 under section this code have been of.” of The amended added.) portion ics of the section ex tending and sen time for proceeding tence until under section 1203 any probationary 850 disposed procedural is nature,
has been is not ex post deprive facto, right. not defendant of (Peo did a vested ple 75, v. 8 Talkington, Cal.App.2d 368]; People 81 P.2d [47 Cal.App.2d People 31 Pollock, 128]; v. 747 P.2d v. Von [89 Moltke, 118 Cal.App. 917]; Nachnaber, 568 P.2d In re 89 [5 Cal.App. 844.) 530 P. 7 392]; pro A Cal.Jur. [265 bationary proceeding disposed meaning within of section 1191 until the defendant has satisfied conditions received his has had his pronounced against revoked and sentence him.
Although provides section 1191 designated must be within a it has period, been pronounce consistently that failure to held specified jurisidictional. (Rankin Superior v. Court, 189, People 192 718]; Zuvela, 157 P. v. 191 Cal. [106 223, People 224-225 907]; French, Cal. 12 P. Cal.2d [215 v. 1014]; People Miller, 720 Cal.App. P.2d v. 130 194 191, [87 ; People Rubens, P.2d 576, v. Cal.App.2d [19 814] [54 98, ; People Pollock, P.2d 31 Cal.App.2d 761-762 1107] 128].) The case last-cited states: “Numerous Cali have fornia authorities held that the failure of the court to *3 pronounce judgment time prescribed within the limitation of by section 1191 of the Penal Code does automatically en provisions title the defendant trial under a new of Code, nor delay section 1202 of Penal does such render the judgment jurisdiction. judgment pro for lack void of A so appeal delay not be may reversed unless re nounced miscarriage justice, sults for the that the pro a reason nouncing mere procedure matter a which reversal, will under not warrant of article VI, 4½, section Constitution California.” Section its must be read 1203. terms with section There fore, judgment against if were that even we tó"assume de pronounced fendant until the time limited there for, juris have to that such was not would be held failure judgment. dictional to the
Moreover, nothing we sections find prescribes of the code which within which probation. after revocation of Section 1203 authorizes the trial certain to hear and de eases permits if matters, court, termine it is subserved, grant justice the ends of satisfied that will probation. time when The section no reference to the contains pronounced. shall be provides
Section 1203.1 that “The court in the ... granting suspend imposing, order or the probation, may may suspen- execution of the sentence and direct such may exceeding sion period continue for such time not possible provided, maximum such sentence . . . all conditions however, . . . fulfillment of the end the term of probation, shall cease at sooner, in the event modification.” This "of gives place section the court power proba- defendant on tion for the maximum time for he be sentenced. could If complies a defendant all the imposed, conditions designated. ends at the time The section does not purport specify a time when shall be if probation. a defendant violates the terms of his There is nothing therein that limiting provi- can be as construed sions of section Moreover, already shown, 1191. latter section specifically authorizes the court to extend the time to pronounce judgment there disposition until has been a proceedings under the sections. The order of the placing trial court years defendant on for two suspending was in accordance with section proceedings 1203.1, but defendant satisfy proba- failed to the terms of his tion, prior to its it was as authorized revoked 1203.2.
Section 1203.2 provides any that “At bationary . . . in its discretion issue warrant for the re-arrest person such there- upon revoke terminate Upon . . . such revocation and termination the court may, if the sen- tence has suspended, pronounce been judgment after said suspension of the sentence for any longest period for which might the defendant have been sentenced. gives . .” Thus this section court the *4 during the probationary time period, if the defendant has any provisions violated of the of his probation, to revoke probation and issue a warrant for the rearrest of the defend- Upon ant. revocation of the defendant, in the eyes of the law, is guilty of crime and section fixes no exact pronouncement time for of and must be construed with other of subject. law on ‘‘
phrase Upon such revocation . . . . . . pronounce judgment .,” . “before, mean after or with,” according simultaneously to the context pur- pose provision of (46 in which it is 1096.) used. C.J. Here it undoubtedly means “after,” carry does not but it idea action. by immediate This is pro- indicated vision of the section any probation peace authorizes or officer to rearrest any person probation bring him before the any court “at time until the final disposition of the case.” Under the circumstances of this cases, and similar it would anbe idle act any to rearrest a defendant “at until the disposition final of the “bring case” and him before the court” if the court had no to pronounce judgment.
Section provides 1203.3 that “The court shall have author- ity any at the term of revoke, modify, or change its order suspension imposition or execution of sentence. may It justice time when the ends of will thereby, be subserved good and when conduct and reform person on probation it, so held shall warrant terminate discharge person held, . . . so cases, and in all if the court has not seen fit to revoke order impose pronounce judgment, or sentence defendant shall at the end of the term of extension thereof, discharged subject be to the ’’ provisions of pre- these sections. When considered with the ceding sections, nothing must be concluded there reasonably section requiring 1203.3 that can be construed as both revocation of and the expiration prior probationary period. to do a defendant section has with the who fully satisfied terms and conditions of his stating discharge, essential to the section conditions repeats requirement 1203.2 that the order revolt- pro- ing probation prior must made nothing there is the section with bationary period; but must be respect to the time when sentence fit to phrase “if the court has not seen such revocation. The impose sentence or revoke the order shall of the term judgment, the defendant at the end nounce discharged” merely author- by the probation ... *5 not seen “if the discharge probationer a court izes the in man- pronounce probation fit” to revoke Neither code. for in the sections of the provided ner other any purports nor of the section quoted phrase provision following pronounced fix to the time when sentence be en- in its read a revocation of When seasonable by the sev- pattern created tirety fitted into the properly law, 1203.3 probation sections make up eral which for by providing merely completes picture pro- conditions all the of defendant who has satisfied bation. for, as to case application is this
Section 1203.2a without in originally in 1941 clarified amendment enacted subsequently who is applies only probationer it to a in committed this state. at above, revoke the may stated court
As the defendant any period, but disposition the final may rearrested time until be at final can be no brought the court. There the case and before judg- is until disposition revoked the case when all is relieved pronounced ment is or the defendant disabilities under the penalties and presence Generally, judgment law. must be dili- of reasonable defendant, unless after the exercise the defendant gence procure presence judg- justice shall find that it will in the interest be 1193.) (Pen. Code, ment be his absence. § present, personally this section a defendant must be Under judgment unless if pronounce he is not the court cannot required therein. proper showing diligence is made as it discretion, find that may, then in its And even the court justice pronounce not be the interest of would many are, course, There in the absence of defendant. pres- defendant why might a court desire have reasons we a case such pronounced, ent when sentence it is here, confinement elsewhere because of his have where possible produce the defendant that, in the interests of revoked, consider can until defendant imposed justice, should be brought before the court. indicate statute The several sections legislative give intent trial court supervisory power over a on probation. period defendant can length the full time for the probationer could imprisoned, During have been or for any less time. bationary may modify by extending it length reducing thereof. revoke Or order rearrested and thereafter enter against him. Section 1203.2 provides for revocation “at *6 during probationary period.” jurisdictional time the fact, therefore, timely the revocation There of prescribed is no exact for the sections the of disposition and the matter. of present case, revoking probation In the the order was made probationary the period within while was con- and defendant eyes fined in law, Arizona. In the then the defendant stood guilty crime; his had failed himself he to re-establish duty penal it was the court him insti- the to sentence to a any legislative do not of a tution. We find indication inten- compel court, tion to probation, after revocation of against pronounce judgment Moreover, an absent defendant. delay bringing imposi- for defendant before court intervening tion of sentence was attributable to confine- prisons. ment and federal state 87, 42 People Hunter, 472], In v. 91 P.2d Cal.App.2d [108 where, here, probation probationary as was revoked until period, imposed expira was not after the but that period, “upon revocation tion such stated guilty of his stood before worthy He failed to as a his crimes. had reestablish himself duty of the state. It was of the to sentence citizen penal a that him to institution. The fact defendant was com subsequent period mitted a to the is immaterial. been re His had of.his probationary to the term.” prior expiration of the voked .. nothing People Lippner, 219 395 P.2d There is v. Cal. [26 457], both opposed to our conclusion that case herein. imposition of sentence oc- revocation of language “during probation” the term and the curred Nothing situation. the decision was addressed to factual here, that where, intended to hold as said therein was period occurs revocation imposition of sentence likewise occur within jurisdictional vitality. same limited in order have People Hainline, 16], 219 Cal. states person placed “No is entitled to be as a right. matter of It in the a exercised end, expressed discretion of the court in the act itself, ‘that society amends be made to for the breach of law; injury any person resulting done to breach, generally specifically for the reforma tion probationer; and rehabilitation of . .’ Where foregoing purposes one of the law has failed there is just logical why no reason a probationer who has deliber ately accept advantages refused to with which reha bilitating provisions him, clothe law and has returned crime, a life of should be heard to invoke the benefits of grace stigma which saved him from felony and which upon conferred him in consideration pledge of a of fu good ture honest citizenship. conduct and As matter of justice comparative giving person it would be to such an advantage had grace above never pro others who had the bation extended them conviction of their first offense.” is affirmed. Shenk, J., J., Edmonds, Traynor, J., Schauer, J., con- *7 curred.
CURTIS, J. I dissent. The in authority proba court’s tionary regulated proceedings wholly is by plain statute. The language of section 1203.3 of the Penal Code fixes a limit of judgment time after cannot be proba in cases, tion and section 1191 code, of specifying said generally pronouncement for the judgment in criminal cases, no application proceedings. to distinct authorizing
After revocation, a modification or change of probationary “during order probation” the term of and a probation termination of time good when “the con- and reform” probationer duct it, warrant provides 1203.3 that “in cases, all if the court has not seen fit to revoke the order probation impose sentence or pronounce judgment, shall at the end term extension thereof, by discharged subject of these sections.” [Em- phasis added.) imperative statutory form of this direc- tion to court—through the use of word “shall” (57 548)—clearly Legislature’s put
C.J. denotes the intent upon limit involving which a criminal action kept considerations alive People O’Donnell, Thus, be rendered therein. in v. Cal.App. 192 102], proba P. was held that [174 tionary period fully had expired, jurisdic the court had no tion suspension to revoke the impose sentence and terma imprisonment upon probationer. The same limitation upon power appears apply court’s where the revocation timely but the delayed beyond probationary term, governing for the plainly statute refers to the performance court’s acts both jurisdictional period prevent order to de discharge. fendant’s
Bearing upon
point of
this
construction as to the function-
ing
probationary
of the
law this state is
of People
the case
Lippner,
857 order of the concept only not should holding the this imposed revoked, sentence should be also but preclude in success- order to probationary period case. so conclude the challenge power of the to court’s ful pre- time within the are done words, unless both acts other statute, duty it the court to by scribed the defendant. requirement, exception statute makes no this As the to juris- commitments in other prison
fact of defendant’s furnish herein, dictions, by as disclosed does record timely failure, revo- any legal after its reason the court’s probation, cation of pronounce prescribed legislative empowered by mandate. court was “in the in absence pronounce the defendant’s only 1193.) justice.” (Pen. Code, interest This was § open so this case course if it was to conclude imperative requirement of furnish- within the the statute pro- in ing the measure of power exercise de- bationary Upon matters. revocation his he crime; eyes fendant stood law guilty worthy had as citizen of the failed to reestablish himself state; then, expiration the court and until two-year probationary jurisdiction, and it had was period, prescribed duty, pass him for upon its the term sentence by punishment Its to provide appropriate law. for his Thus, Legislature was not of indefinite duration. where the its unless unqualified evinced intent that “in all cases” imposed the court has revoked sentence judgment, nounced shall end of the “the defendant at the thereof, or any extension (Pen. discharged” Code, negation 1203.3), there is clear § proceed authority the court’s otherwise than as specifies question. statute at the time Here pronounced during prescribed, but some four years probationary period. In so doing statutory power, the court exceeded the limits of its reversed, Keene, (cf. should be In re 791], Ariz. where the Court Supreme ruling reached a like fac- Arizona decision a similar situation in the light tual law state’s containing controlling provision the same found here 1203.3, supra.) jurisdictional
The unmistakable limitation nature *9 858 by prevents
declared section 1203.3 application the here of the rule respect judgments followed with to after the by supra—that the fixed section 1191, provision since contemplates procedure matter a mere going jurisdiction court, beyond delay the time fixed will not result in miscarriage a reversal unless a justice appears. (People French, v. 12 720, Cal.2d 773-774 1014], cited.) and cases [87 there For the foregoing reasons I believe the defendant is en- to titled his custody. from CARTER, J. I in I dissent. am the accord with views expressed by opinion Justice in dissenting Curtis in this case, but I think upon there is ground an additional which the majority opinion should be reversed. position takes the provisions the to statutory relating probation are procedural, provisions and therefore the in effect at the time the proceeding are comes before the court applicable rather than those were in at the time which effect the crime original pro was committed or the was provisions nounced. I am opinion likewise of the that such are procedural. being was case, Such the trial by provisions bound section 1203.2a of Penal Code at on the defendant 10, Legis May provision 1943. This was enacted opinion Although lature in 1941. in majority as stated it was in amended the 1941 enactment effect was pro then pronounced. was Said section vided: any person
“If com- who has been released on offense, hereby mitted made prison to a State for another it is mandatory county officer report the commit- he was released on to being in writ- days 30 after advised ment to court within days the court ing Within thereafter commitment. 30 impose sentence probation and shall revoke sentence. imposed in of the defendant may be the absence the court report officer to fails the event such cases. impose to fails such commitment to thereafter person may not provided, as herein sentence granting retained in any authority sentenced under probation.” 1943 opinion that majority agree I do “in State” this the words which added amendment
859 prison,” “A the words State constituted clarification a mere Legislature in- I think it said section. is clear that person case apply tended this section to in which had released on state who been was committed applicable prison any state, and it therefore this case. enacted evidently of the Penal Section 1203.2a Code was People Hunter, overcome the effect Cal ease of miscon .App.2d opinion clearly P.2d 472], which proba applicable strues the of the Penal Code *10 opinion tion, my is unsound. majority opinion The “When states: with considered nothing
preceding sections, it must that there be concluded is requir- in section that can be construed reasonably 1203.3 ing both the revocation and the period. judgment prior discharge a defendant who do section has to proba- fully has and conditions of his satisfied terms disregards clearly tion.” statement is This erroneous Code. plain language the Penal of section 1203.3 of have court shall first sentence in this section states: “The revoke, authority term of or suspension imposition change its modify or order of provides: further Said execution sentence.” fit cases, “. all seen . and in if or impose sentence revoke the order of pronounce judgment, the defendant shall at the end thereof, or be extension sections.” discharged subject of these reached which can be my opinion only rational conclusion proba- language is unless plain of this section imposed tion revoked and sentence the defendant probationary period, nounced within discharged. defen- above-mentioned, grounds both Therefore, on im- sentence was before dant was entitled upon him imposed sentence posed, judgment which and the reversed. should