Ex parte Klein

• Decision Date: 16 November 1961
• Docket Number: Cr. 4000
• Citation: 17 Cal.Rptr. 71,197 Cal.App.2d 58
• Parties: In re James Edward KLEIN on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

Page 71

17 Cal.Rptr. 71

197 Cal.App.2d 58

In re James Edward KLEIN on Habeas Corpus.

Cr. 4000.

District Court of Appeal, First District, Division 1, California.

Nov. 16, 1961.

Hearing Denied Jan. 9, 1962.

James Edward Klein, petitioner, in pro. per.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Derald E. Granberg, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

After petitioner had been committed to prison upon suspension of parole for another offense, the court here revoked the probation it had previously granted as to the offense which was submitted to it, rendered judgment and imposed sentence pursuant to section 1203.2a of the Penal Code in the absence of petitioner and without his representation by counsel. While we have found no decision which passes upon the issue, we do not believe the section applicable unless petitioner waives the rights of appearance and representation. The opportunity to be heard and to be represented by counsel at the crucial point of conviction are basic rights which, inherited from the common law, are cornerstones of due process. Waiver of such rights cannot be lightly constructed: it can be granted only knowingly and intelligently; we do not find such waiver here.

We set out categorically petitioner's record of conviction and probation, grant and suspension of parole:

1. On or about November 13, 1952, petitioner was committed to the California State Prison at San Quentin from Los Angeles County pursuant to a conviction by jury upon two counts of forgery, and upon his plea of guilty to one count of receiving stolen property.

2. In August of 1954, the petitioner was released on parole.

3. On September 28, 1955, his parole was suspended and he was ordered returned to prison.

4. On March 20, 1956, he was again released on parole as of May 2, 1956.

5. In March of 1957, the petitioner was arraigned in Los Angeles County on a charge of petty theft with a prior felony conviction. (Pen.Code, § 667.) He entered a plea of guilty. The court, without imposition of judgment, granted probation for a period of three years on June 19, 1957. Counsel represented petitioner during these proceedings.

6. On March 28, 1957, between appellant's arraignment and the grant of probation, appellant's earlier parole was suspended and he was ordered returned to prison.

7. On August 2, 1957, petitioner was again released on parole.

8. On December 26, 1957, the Division of Adult Paroles suspended petitioner's parole and ordered that he be returned to the penitentiary.

9. In February, 1958, pursuant to the provisions of section 1203.2a of the Penal Code, the court without notice to petitioner, without his presence, and without his being represented by counsel, revoked the earlier grant of probation of March, 1957, and sentenced petitioner to the state penitentiary, the sentence to run concurrently with the sentence he was then serving upon the conviction of November 13, 1952.

10. Petitioner did not receive notice of the revocation of probation and the pronouncement of judgment against him until February 27, 1958, an elapse of a period of 14 days.

The record shows that when the court revoked probation and imposed sentence in petitioner's absence, in February, 1958, he was incarcerated in the state prison for another offense, having been imprisoned as a parole violator subsequent to the grant of probation. Prior to the offense for which he had been granted probation in March, 1957, he had been first tried, convicted and sentenced in November, 1952, then granted parole, and finally, after a series of parole grants and subsequent violations, again returned to the state prison.

Petitioner on habeas corpus raises two issues, which we shall discuss separately: first, whether section 1203.2a of the Penal Code applies only in the event the imprisonment after the grant of probation results from a conviction and sentence rendered subsequent to such grant of probation and not if such imprisonment results from revocation of parole; second, whether the application of the section, in the imposition of sentence in his absence, without a showing that petitioner understandingly had waived his right to be present and to be represented by counsel at that time, deprived him of his constitutional rights.

Turning to the first point, we believe that section 1203.2a applies since petitioner's return to prison for violation of his parole constituted a commitment 'to a prison * * * for another offense' within the meaning of the statute. Both the literal interpretation of the word 'commitment' as well as the purpose of the Legislature show the pertinence of the section.

Section 1203.2a of the Penal Code reads in part: 'If any defendant who has been released on probation is committed to a prison in this State for another offense, the court which released him on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he was granted probation, in the absence of the defendant.' (Emphasis added.)

In the first place, the prisoner was 'committed to a prison' upon his violation of parole. Webster's New International Dictionary (2d ed., 1943) defines the word 'commit' as follows: 'To put in charge of a jailer; to imprison.' People v. Scherbing (1949) 93 Cal.App.2d 736, 737, p. 739, 209 P.2d 796, p. 798, makes the point that the 'Legislature has not used the word 'commitment' to refer solely to judicial action.' While the court refers to section 5077 of the Penal Code, which was later amended (Stats.1953, ch. 1666, p. 3396), the general language of the opinion still holds: 'A 'commitment,' in the legal sense, may be issued, lawfully, by other than a judicial body. * * * Section 1767 of the Welfare and Institutions Code provides that the power of the Youth Authority to make orders 'committing to an institution' any person under the control of the Authority may not be delegated. These sections demonstrate that the Legislature has not used the word 'commitment' to refer solely to judicial action.' (P. 739, 209 P.2d p. 798.) Following this decision the court in People v. Rick (1952) 112 Cal.App.2d 410, p. 413, 246 P.2d 691, p. 693 said: 'A commitment is an order by a court or other authorized agency [citation] sending a person to prison or other place of detention. It is the process and authority for carrying the judgment and sentence into effect.'

In the second place, the construction of section 1203.2a itself indicates that it is not limited to those cases in which the prisoner's return to the penitentiary results from a subsequent conviction. Commitment for another offense within the context of section 1203.2a is broad enough to include commitments both for an offense committed prior to, as well as subsequent to, the offense which engendered probation. That the words 'another offense' are not limited only to subsequent offenses becomes clear from paragraph four of the same section. The Legislature there provides specifically as to the commencement of the term of imprisonment for those defendants guilty of a subsequent offense. Thus treatment of subsequent offenses is differentiated from treatment of offenses in general; such subsequent offenses are excepted for special handling from the whole category of offenses. The whole category covers all offenses, including prior offenses.

We conclude that although petitioner had been imprisoned because of parole violation rather than a conviction subsequent to the original judgment, the parole violation produced a 'commitment.' There is no distinction between a commitment for parole violation and a commitment after judgment either in the sense of the word commitment or in the legislative purpose expressed in the section.

The second issue turns upon whether the court in applying the section could properly impose sentence upon petitioner in his absence and without counsel in a case in which he had not waived those rights. We shall point out why we have concluded that rendition of judgment under such circumstances violated petitioner's constitutional rights.

At the threshold we must distinguish between a case in which the court has properly pronounced judgment but suspended execution during probation and a case in which the court has not rendered judgment but granted probation and, after the revocation of probation, pronounced judgment. The courts have uniformly held that in the first instance no constitutional rights apply to the revocation of probation. A probation proceeding is not a prosecution; the convicted person can claim no right to probation; he is accorded probation as a privilege. (In re Levi (1952) 39 Cal.2d 41, 44, 244 P.2d 403; In re Davis (1951) 37 Cal.2d 872, 873, 236 P.2d 579; People v. Fields (1948) 88 Cal.App.2d 30, 33, 198 P.2d 104.)

The rendition of judgment and the imposition of sentence take place in an entirely different legal setting than the grant of probation. Basic constitutional protections attach to the judicial act that deprives the defendant of status, liberty and sometimes property. Constitutional and statutory safeguards surround so grave a pronouncement. At this point in the proceedings the defendant must be afforded the opportunity to appear and to defend through counsel. As we shall point out, one of the heritages of Anglo-Saxon common law, which expresses itself in constitution and statute, is this basic right of the defendant, at the time of sentencing, to appear and defend in person with counsel.

Article I, section 13, of the California Constitution provides that '[i]n criminal prosecutions * * * the party accused shall have the right * * * to appear and defend, in person and with counsel.' Section 1193 of the Penal Code declares that 'If the conviction be for a felony, the defendant must be personally present when judgment is pronounced against him' unless his presence cannot be procured after the exercise of reasonable diligence or defendant has absconded. ¹...