Griffin, In re

• Citation: 67 Cal.2d 343,62 Cal.Rptr. 1,431 P.2d 625
• Decision Date: 21 September 1967
• Docket Number: Cr. 10897
• Court: United States State Supreme Court (California)
• Parties: , 431 P.2d 625 In re Joseph GRIFFIN on Habeas Corpus.

Page 1

62 Cal.Rptr. 1

67 Cal.2d 343, 431 P.2d 625

In re Joseph GRIFFIN on Habeas Corpus.

Cr. 10897.

Supreme Court of California,

In Bank.

Sept. 21, 1967.

Charles L. Lippitt and Jerome S. Billett, Van Nuys, for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas S. Kerrigan, Deputy Atty. Gen., for respondent.

TRAYNOR, Chief Justice.

Petitioner was charged with four counts of grand theft and five of forgery. He pleaded guilty to count 3 (grand theft) and count 9 (forgery). On July 23, 1963, the superior court suspended imposition of sentence on these counts, dismissed the other charges, and granted petitioner probation for the term of three years.

The probation report showed that in his work as an insurance adjuster petitioner obtained approximately $20,000 by thefts and forgeries. He attributed his criminal activities to a need for money that arose from a compulsion to gamble. The conditions of probation were that he spend the first six months of the three-year term in the county jail, that he make restitution through the probation officer in amounts and manner to be prescribed by that officer, and that he not gamble. After petitioner had been in jail for three months the court modified the probation order to permit his immediate release because he represented that he would be able to obtain employment and begin restitution. Petitioner agreed with the probation officer that beginning in February 1964 he would make payments to that officer of about $100 a month toward restitution.

Petitioner did not make these payments as agreed. On July 7, 1964, he appeared with counsel for a hearing on the probation officer's report of violations. The court modified the probation order to require petitioner to pay $125 a month to the probation officer toward restitution. Petitioner did not make these payments. He issued bad checks and engaged in illegal schemes similar to those resulting in the original criminal charges. On August 23, 1965, he again appeared with counsel for a hearing as to his violations of the conditions of probation. The court ordered probation continued with the additional condition that petitioner sign no checks.

Petitioner continued to violate the conditions of probation. On July 5, 1966, he appeared without counsel for a hearing as to revocation of probation. This appearance and the ensuing proceedings were before a judge who had not previously heard the case. Through the public defender petitioner moved for a month's continuance to obtain private counsel. The court continued the matter to August 2, 1966. No one mentioned that the period of probation would expire on July 22.

On August 2 petitioner appeared with counsel who was new to the case. Petitioner's counsel and the deputy district attorney argued the merits of the probation officer's recommendation that probation be revoked. No one mentioned that the three-year term of probation had expired. The court ordered probation revoked. The judge stated that he would sentence petitioner to the state prison, but at petitioner's request he continued the matter one week.

After the hearing on August 2, petitioner called his counsel's attention to the expiration of the probationary term. Counsel had not known that the term had expired. He promptly served and filed a memorandum contending that upon the expiration of the probationary period the court lost jurisdiction to revoke probation. After further hearings the court determined that on July 5, when petitioner requested a month's continuance, he knew that the probationary term would end on July 23, and that by knowingly seeking and obtaining the continuance beyond the termination date he waived his right to insist on the jurisdictional nature of timely revocation of probation. On August 16, 1966, the court sentenced petitioner to the state prison on counts 5 and 9. ¹

Although the order revoking probation could have been reviewed on an appeal from the ensuing judgment (People v. Robinson (1954) 43 Cal.2d 143, 145, 271 P.2d 872), petitioner did not appeal. Instead, after having applied unsuccessfully for habeas corpus in the courts below, he now seeks the writ in this court.

Penal Code section 1203.3 ² provides that the court shall have authority to revoke or modify probation 'at any time during the term of probation.' The cases have consistently taken the view announced in People v. O'Donnell (1918) 37 Cal.App. 192, 196--197, 174 P. 102, 104, that 'the statute itself furnishes the measure of the power which may thus be exercised' and 'the court loses jurisdiction or power to make an order revoking or modifying the order suspending the imposition of sentence or the execution thereof and admitting the defendant to probation after the probationary period has expired.' (See People v. Williams (1944) 24 Cal.2d 848, 854, 151 P.2d 244; People v. Siegel (1965) 235 Cal.App.2d 522, 524, 45 Cal.Rptr. 530; People v. Jordan (1964) 226 Cal.App.2d 7, 11, 37 Cal.Rptr. 738; People v. Mason (1960) 184 Cal.App.2d 182, 191, 7 Cal.Rptr. 525; People v. Blume (1960) 183 Cal.App.2d 474, 481--482, 7 Cal.Rptr. 16; People v. Blakeman (1959) 170 Cal.App.2d 596, 599, 339 P.2d 202; People v. Brown (1952) 111 Cal.App.2d 406, 408, 244 P.2d 702.) Habeas corpus lies to review and correct action in excess of the jurisdiction defined by section 1203.3. (In re Clark (1959) 51 Cal.2d 838, 840, 337 P.2d 67; Ex parte Slattery (1912) 163 Cal. 176, 178, 124 P. 856; see Fayad v. Superior Court (1957) 153 Cal.App.2d 79, 82, 313 P.2d 669 (mandate directing the superior court to discharge petitioner from a probationary term that had been extended beyond the statutory maximum).)

Petitioner contends that because timely revocation of probation is 'jurisdictional' the rule that jurisdiction cannot be conferred by estoppel applies. That rule relates to subject matter jurisdiction, the court's power to hear and determine the cause. (Summers v. Superior Court (1959) 53 Cal.2d 295, 298, 1 Cal.Rptr. 324, 347 P.2d 668; In re Johannes (1931) 213 Cal. 125, 131, 1 P.2d 984; In re Garrity (1929) 97 Cal.App. 372, 376, 275 P. 480; People v. Titus (1927) 85 Cal.App. 413, 416, 259 P. 465; see People v. Granice (1875) 50 Cal. 447, 448--449, 13 Cal.Jur.2d Courts, § 82.)

The jurisdictional concept involved in the cases holding that the court is without power to revoke probation after the end of the probationary term is not lack of jurisdiction of the cause but excess of jurisdiction. (See the discussion in Ex parte Slattery (1912) supra, 163 Cal. 176, 178, 124 P. 856, and People v. O'Donnell (1918) supra, 37 Cal.App. 192, 196--197, 174 P. 102.) Neither the probation statutes nor the cases applying them support a holding that expiration of the probationary period terminates the court's jurisdiction of the subject matter. The statutes themselves contemplate that such fundamental jurisdiction continues, for they provide for the court's determination of certain matters after the end of the probationary term. ³

When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. (City of Los Angeles v. Cole (1946) 28 Cal.2d 509, 515, 170 P.2d 928; Guardianship of Di Carlo (1935) 3 Cal.2d 225, 228--229, 44 P.2d 562, 99 A.L.R. 990; People v. Patrich (1897) 118 Cal. 332, 333, 50 P. 425; Hoshour v. County of Contra Costa (1962) 203 Cal.App.2d 602, 605, 21 Cal.Rptr. 714; Phillips v. Beilsten (1948) 164 Cal.App.2d 450, 457, 330 P.2d 912; Munns v. Stenman (1957) 152 Cal.App.2d 543, 557--558, 314 P.2d 67; Blue v. Superior Court (1956) 147 Cal.App.2d 278, 285, 305 P.2d 209; see 30A Am.Jur., Judgments, § 47; 21 C.J.S. Courts §§ 108, 109.) Whether he shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when 'To hold otherwise would permit the parties to trifle with the courts.' (City of Los Angeles v. Cole (1946) supra, 28 Cal.2d 509, 515, 170 P.2d 928, 932.) On the other hand waiver of procedural requirements may not be permitted when the allowance of a deviation would lead to confusion in the processing of other cases by other litigants. (Tabor v. Superior Court (1946) 28 Cal.2d 505, 508--509, 170 P.2d 667.) Substantive rules based on public policy sometimes control the allowance or disallowance of estoppel. For example, People v. Blakeman (1959) supra, 170 Cal.App.2d 596, 598, 339 P.2d 202, 203 held that a defendant who requested and received probation conditioned on banishment was not estopped to attack the condition, for public policy forbids banishment and 'The law can not suffer the state's interest and concern in the observance and enforcement of this policy to be thwarted through the guise of waiver of a personal right by an individual.' On the other hand a party who has procured a divorce decree is estopped to claim later that it is invalid. In that situation a rule of substantive law based on public policy prevents his questioning even the jurisdictional fact of domicile. (Spellens v. Spellens (1957) 49 Cal.2d 210, 218--221, 317 P.2d 613; Rediker v. Rediker (1950) 35 Cal.2d 796, 805--808, 221 P.2d 1, 20 A.L.R.2d 1152; Union Bank & Trust Co. v. Gordon (1953) 116 Cal.App.2d 681, 685, 254 P.2d 644.)

In the present case no policy, substantive or procedural, precludes estoppel of petitioner to attack the excess of jurisdiction that resulted from the granting of his motion for a continuance. The trial court's determination that he is estopped is in harmony with the proper operation of the probation system.

By seeking a continuance to a time beyond the end of the probationary term petitioner asked the court to do...