Ex parte Hays
| Decision Date | 21 September 1953 |
| Docket Number | Cr. 5077 |
| Citation | 260 P.2d 1030,120 Cal.App.2d 308 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Ex parte HAYS. |
J. Perry Langford, Los Angeles, for applicant.
S. Ernest Roll, Dist. Atty., Jere J. Sullivan, Deputy Dist. Atty., Robert Wheeler, Deputy Dist. Atty., Los Angeles, for respondent.
The records disclose that on January 17, 1951, the applicant, Frank Hays, after trial by jury, was found guilty as charged, of manslaughter in the driving of a motor vehicle with gross negligence. The verdict recommended punishment by imprisonment in the county jail. The information charged a former conviction in San Diego County of the crime of robbery, which prior conviction was admitted by the defendant.
On February 8, 1951, a motion for new trial was denied; the proceedings were ordered suspended, and petitioner was granted probation upon the condition that the first eight months of the probationary period be served in the county jail, with good time allowed if earned. Other conditions were imposed which are not relevant to the present controversy.
Under the above probationary condition, and no sentence having been pronounced, Hays was confined in the county jail for a period of about 6 months and 18 days. Thereafter, and on March 26, 1953, probation was revoked on account of defendant's violation of the terms thereof. A sentence of one year in the county jail was thereupon imposed, and on July 29, 1953, the present writ of habeas corpus was issued by this court.
It is now contended that by reason of the above procedure, petitioner has been committed to a county adult detention facility for a period of more than one year, in violation of Section 19a of the Penal Code, which provides that 'in no case shall any person sentenced to confinement in a county or city jail, or in a county or joint county penal farm, road camp, work camp, or other county adult detention facility, or committed to the sheriff for placement in any such county adult detention facility, on conviction of a misdemeanor, or as a condition of probation, or for any reason, be committed for a period in excess of one year, provided, however, that the time allowed on parole shall not be considered as a part of the period of confinement.'
The question here presented, as phrased by respondent is, 'Does section 19a, Penal Code, authorize a judgment and sentence in the county jail for a period of one year, after and without crediting thereon, a previous period of confinement in the county jail as a condition of probation in the same cause?'.
The contention that petitioner has been committed to a county jail in violation of Section 19a is based upon what respondent terms a fallacious line of reasoning, namely, 'upon a process of including the period of about 6 months and 18 days confinement in the county jail as a condition of probation with the period thus far served (as of July 29, 1953 of about 4 months and 10 days) of the ordered 1 year confinement in the county jail imposed by the judgment and sentence as punishment for the crime after vacation of the order granting probation'. (Respondent's italics.)
Among other things, the respondent has urged that 'the writ (habeas corpus) was applied for prematurely and issued prematurely', inasmuch as even under petitioner's theory, the added terms of confinement under probation and under the sentence only total, up to March 29, 1953, the date of issuing the writ, a period of about 10 months and 28 days, in other words, less than one year; and that therefore there was at that date, no violation of Section 19a. However, as noted in petitioner's closing memorandum, . That date is now past, and in view of the decision herein, it is unnecessary to further consider this contention.
There is no serious disagreement in respect to the trial court's authority to grant probation in the present case; nor can there be any doubt about the validity of the condition imposed as a part of such probation, namely, that the defendant serve the first eight months of the probation in the county jail.
The general nature of the entire probationary procedure is likewise well settled. As said in In re Martin, 82 Cal.App.2d 16, 22, 185 P.2d 645, 649, 'An order placing a defendant on probation, even though it include as a condition a period of detention in the county jail, is not a judgment and sentence.' There is no finality to an order for probation; it imposes no penalties but is 'an act of clemency'. A defendant has the undoubted right to refuse probation,--a necessary safeguard against the possibility that probationary conditions may be more onerous than sentence. People v. Frank,...
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Franklin v. State
...in the county jail is valid, and that such an order is not to be deemed a judgment and sentence. Those cases, Ex parte Hays, 120 Cal.App.2d 308, 260 P.2d 1030 (1953), and Ex parte Goetz, 46 Cal.App.2d 848, 117 P.2d 47 (1941), interpret the California probation statute, (West) Cal.Penal Code......
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People v. Arnold
...311, 314-317, 115 Cal.Rptr. 910 [section 2900.5, as then in effect, applicable only to state prison commitments]; In re Hays (1953) 120 Cal.App.2d 308, 311, 260 P.2d 1030 [no statute then in existence authorized credit against jail sentences for local time previously served as a condition o......
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Osslo, In re
...the sentence which might be imposed. (People v. Osslo (1958), supra, 50 Cal.2d 75, 103(30), 323 P.2d 397, 413; In re Hays (1953), 120 Cal.App.2d 308, 310(4), 260 P.2d 1033; People v. Frank (1949), 94 Cal.App.2d 740, 742, 211 P.2d 350; Lee v. Superior Court (1949), 89 Cal.App.2d 716, 717(1),......
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People v. Rojas
...Cal.App. 730, 300 P. 874; In re Webber, 95 Cal.App.2d 183, 212 P.2d 540; In re Marquez, 3 Cal.App.2d 625, 45 P.2d 342; In re Hays, 120 Cal.App.2d 308, 260 P.2d 1030); in the instant case it is five years. (§ 664, Pen.Code.) However, it is now limited by section 19a, Penal Code, as amended, ......