Bine, In re

• Decision Date: 01 February 1957
• Docket Number: Cr. 5953
• Citation: 306 P.2d 445,47 Cal.2d 814
• Court: California Supreme Court
• Parties: In re Leon BINE On Habeas Corpus.

Page 445

306 P.2d 445

47 Cal.2d 814

In re Leon BINE On Habeas Corpus.

Cr. 5953.

Supreme Court of California, in Bank.

Feb. 1, 1957.

Irmas, Rutter & Halper and William A. Rutter, Beverly Hills, for petitioner.

William B. McKesson, Dist. Atty., Adolph Alexander, Chief Deputy Dist. Atty., Jere J. Sullivan, Lewis Watnick and Fred N. Whichello, Deputy Dist. Attys., Los Angeles, for respondent.

SHENK, Justice.

This is a proceeding in habeas corpus to determine whether the court exceeded its jurisdiction in modifying the terms of petitioner's probation.

Petitioner and four co-defendants, Jarosh, Chapman Sergent and Thrift, were charged with conspiracy to defraud certain insurance companies. Each pleaded guilty and requested probation. Probation reports were prepared in the probation department from information obtained from the defendants and from the investigation department of the district attorney's office. At the probation hearing on June 18, 1956, the court stated that it had read the probation report for this petitioner and granted him probation. The following minute order was thereupon entered: 'Proceedings suspended, 5 years probation, fined $1,000, payable as directed by probation department, to obey all laws.' On July 1, 1956, the probation department accepted as satisfactory an initial payment of $25 from petitioner. On July 17th the court, on its own motion set July 31st for hearing for modification of the terms of probation. Its action was precipitated by reason of an affidavit made by co-defendant Chapman dated June 19, 1956, which stated that the affiant wanted 'to correct an error of information available to the Court at the time of the sentencing of Howard Jarosh.' In ordering a hearing the court stated that it had had a further investigation made and had found 'that there was outright deceit practiced upon the Probation Department and the court granting the original probation.' Supplemental probation reports were furnished as to each defendant, including petitioner. The affidavit of Chapman contains no reference, dirct or indirect, to petitioner. The supplementary probation report states that 'Subsequent investigation and questioning of (petitioner) does not materially modify or bring to light any information not included in the original report submitted to the Court.' No evidence was presented at the hearing as to petitioner which was not before the court on June 18th. After the hearing a Minute Order was entered which provided, as to petitioner: 'Probation modified, requirement of fine is vacated and set aside, defendant required to serve next 6 months in county jail, good time is recommended, honor farm or road camp recommended. Defendant remanded.'

The question before us is whether the court exceeded its jurisdiction in modifying the probation of petitioner and whether the remedy of habeas corpus is available to him. It should be observed that no problem is here presented as to improper conduct by petitioner or violation of the terms of his original probation.

The record before us clearly indicates that there was no factual basis for the court's determination that the probation of petitioner should be modified and new terms imposed. Whatever may have appeared as to the other co-defendants, the record of which is not before us, it is apparent that the court reached a different conclusion upon the same facts which were before it at the time it imposed the original terms of probation.

Probation is an act of clemency and may be withdrawn if the privilege is abused. An abuse of privilege is shown where a defendant practices a deception upon the court at the time probation is granted, People v. Sapienzo, 60 Cal.App. 626, 629, 213 P. 274, or violates any of the terms or conditions of probation. Pen.Code, § 1203.2. In such case the court is specifically authorized to modify and change any and all of the terms and conditions of probation. Pen.Code, § 1203.1. While it has a wide discretion in imposing or modifying the terms of probation, it may not act arbitrarily or capriciously. In re Davis, 37 Cal.2d 872, 875, 236 P.2d 579; In re Dearo, 96 Cal.App.2d 141, 143, 214 P.2d 585. Its determination must be based upon the facts before it.

The order of June 18th granting probation was an appealable order under the express terms of the 1951 amendment to subdivision 1 of section 1237 of the Penal Code. This section reads: 'An appeal may be taken by the defendant: 1. From a final judgment of conviction; an order granting probation shall be deemed to be a final judgment within the meaning of this section. 2. * * * 3. From any order made after judgment, affecting the substantial rights of the party.' The appealability of an order modifying probation has heretofore not been judicially determined. In People v. Robinson, 43 Cal.2d 143, 271 P.2d 872, we held that an order revoking probation is not an appealable order within...