Hamm, In re
| Decision Date | 24 June 1982 |
| Docket Number | Cr. 37922 |
| Citation | 183 Cal.Rptr. 626,133 Cal.App.3d 60 |
| Parties | In re Phillip Kennedy HAMM, on Habeas Corpus. The PEOPLE of the State of California, Appellant, v. Phillip Kennedy HAMM, Respondent. |
| Court | California Court of Appeals Court of Appeals |
Paul Arthur Turner, Encino, under appointment by the Court of Appeal, for respondent.
The People appeal from the granting of a writ of habeas corpus vacating jail commitments in two misdemeanor cases, contending that the superior court incorrectly construed Penal Code sections 1203a and 1203.2, subdivision (e). 1 Thus, this case squarely presents the question whether section 1203.2 permits misdemeanor probation to be extended beyond the three year period set out in section 1203a.
We conclude the reasonable interpretation of the sections is to allow courts the discretion to grant misdemeanor probation in excess of three years in certain circumstances.
Phillip Kenneth Hamm (Hamm) the defendant and respondent herein, found himself in considerable difficulties with the law during the middle and late '70s, and as a consequence, was frequently before the municipal courts.
In a case number M 118362, he plead guilty to a misdemeanor and on October 1, 1974 the municipal court suspended imposition of sentence and placed him on one year probation on stated terms and conditions.
Over an extended period of time, the court revoked and reinstated his probation on a number of occasions until November 26, 1979, when, following the final revocation of probation, the court sentenced him to 120 days in the county jail, more than five years after the imposition of his original probationary sentence. 2
Hamm was again before the court in another case numbered M 121298, wherein he entered a plea of nolo contendere to a misdemeanor. On May 22, 1975, the municipal court sentenced him to 90 days in the county jail but suspended execution of the sentence and granted him one year summary probation subject to certain terms and conditions.
His conduct resulted in a series of revocations and reinstatements of probation. 3 Finally on the same date November 26, 1979, the same municipal court handling the prior case sentenced him to serve 30 days in the county jail on this latter case, such time to be served concurrently with the 120 day county jail sentence he received in the prior case. 4 This remand to custody occurred some four and one-half years past the date of the original imposition of the probationary sentence.
At this juncture on March 14, 1980, Hamm filed a petition for writ of habeas corpus challenging the jurisdiction of the municipal court to remand him to custody in these cases.
The superior court ruled that the municipal court acted in excess of its authority in extending probation in both cases beyond the three year limit set forth in section 1203a and ordered the jail commitments vacated.
The People appealed the ruling to this court.
The resolution of this case turns on the interpretation of two of the many provisions found under section 1203 dealing with probation.
The language of section 1203a, standing alone, appears to limit the power of a court in imposing punishment in a misdemeanor case to the use of probation for a period not to exceed three years, with certain exceptions.
Section 1203.2, subdivision (e), on the other hand, does not specifically refer either to felony or to misdemeanor probation. The language thereof extends the court's jurisdiction to impose probation after the expiration Before the legislature adopted this provision in 1957 (Stats.1957, ch. 331, § 1 p. 970), a court lost the power to reimpose probation after expiration of the probationary period. Even where a court revoked probation within the probationary period and thus retained jurisdiction, (People v. Youngs (1972) 23 Cal.App.3d 180, 185, 99 Cal.Rptr. 901, disapproved on other grounds in People v. Vickers (1972) 8 Cal.3d 451, 453, fn. 2, 105 Cal.Rptr. 305, 503 P.2d 1313; People v. Brown (1952) 111 Cal.App.2d 406, 407-408, 244 P.2d 702) it could only impose sentence after the period expired. (People v. Carter (1965) 233 Cal.App.2d 260, 267-268, 43 Cal.Rptr. 440; People v. Brown, supra, 111 Cal.App.2d at p. 408, 244 P.2d 702.)
of the original probation "... for such period and with such terms and conditions as it could have done immediately following conviction."
The language quoted above from section 1203.2, subdivision (e), has been interpreted to permit courts "not only to retain the right to impose sentence at a subsequent time, but also to extend the original term of probation to the maximum time for which it could have been originally fixed in lieu of sentencing or, as an alternative, to grant a completely new term of probation without reference to the length of the original term or time served under it." (People v. Carter, supra, 233 Cal.App.2d at p. 268, 43 Cal.Rptr. 440; see also People v. Ottovitch (1974) 41 Cal.App.3d 532, 535, 116 Cal.Rptr. 120.)
On appeal the People argue that the two sections under scrutiny should be read together so that misdemeanor probation is also covered by section 1203.2, subdivision (e), thereby permitting municipal courts the same flexibility now clearly granted to courts dealing with felony probations.
The superior court in the present case held that the three year time limitation of section 1203a "controls and limits any authority of the court under Penal Code section 1203.2," which position Hamm adopts. Under this interpretation, the municipal court lost the power to grant and enforce probation three years after the initial dates of probation and after the expiration of three years, had no option other than to impose sentence, or lose all jurisdiction by invalidly attempting to extend probation. Such an interpretation would restrict the application and use of section 1203.2, subdivision (e) to felony matters only. 5
Because the determination is one of law and not of fact, we are not bound by the trial court's conclusion but must independently decide the issue. (In re M. L. B. (1980) 110 Cal.App.3d 501, 503, 168 Cal.Rptr. 57; People v. Superior Court of Ventura (1974) 41 Cal.App.3d 636, 639, 116 Cal.Rptr. 24; 6 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 210, pp. 4200-4201.)
However, case law is only moderately instructive on the point. In People v. Ottovitch, supra, 41 Cal.App.3d at pages 534-535, 116 Cal.Rptr. 120, the court held that section 1203.2, subdivision (e) did not apply because the defendant's misdemeanor probationary period had not expired at the time of the court's order setting aside the revocation of probation. While Ottovitch provides indirect support for the People's position, we do not consider it conclusive. Alternatively, the cases which have held that section 1203a limits the misdemeanor probationary period to three years have not considered the effect of section 1203.2, subdivision (e). (See, e.g., In re Daoud (1976) 16 Cal.3d 879, 129 Cal.Rptr. 673, 549 P.2d 145; In re Dupper (1976) 57 Cal.App.3d 118, 128 Cal.Rptr. 898.) 6
The other cases discussing the pertinent language in section 1203.2, subdivision (e) are concerned with felony probation. (See, e.g., People v. Carter, supra, 233 Cal.App.2d 260, 43 Cal.Rptr. 440; People v. Gish (1964) 230 Cal.App.2d 544, 41 Cal.Rptr. 155.)
Since the case law is not conclusive on the issue, we turn to an analysis of the language of the provisions themselves and to considerations of logic and public policy.
The critical language in section 1203a grants courts the power "... to suspend the imposing or the execution of the sentence, and to make and enforce the terms of probation for a period not to exceed three years." This language is substantially similar to that restricting the length of felony probation periods in section 1203.1 as follows: "The court ..., in the order granting probation, may suspend the imposing, or the execution of the sentence and may direct that such suspension may continue for such period of time not exceeding the maximum possible term of such sentence, except as hereinafter set forth, and upon such terms and conditions as it shall determine."
Both provisions authorize the courts to grant probation for a period not to exceed a specified time, three years in the case of misdemeanors or the maximum possible term of sentence in the case of felonies, with certain exceptions.
Both provisions also existed in substantially identical form at the time section 1203.2, subdivision (e), was enacted in 1957. Section 1203.2, subdivision (e) itself contains no reference either to felony or misdemeanor probation, but refers generally to the "probationary period." In light of the history and language of these three provisions, we see no reason to limit the applicability of section 1203.2, subdivision (e) to felony probation only.
Further, we are persuaded that logic and public policy considerations support this interpretation. Including misdemeanors within the scope of section 1203.2, subdivision (e) would expand the court's sentencing options by extending the trial court's discretion to grant or deny probation after the initial three year period has expired. Denying courts this authority would place misdemeanants in the anomalous position of being required to serve jail sentences while felons in a similar situation could receive another grant of probation.
Rather than forcing courts to sentence a misdemeanant to jail when, in the court's perception, society and the offender both would benefit by prolonging probation, our interpretation preserves the trial court's discretion in these important matters. Because the misdemeanant always retains the right to reject probation and undergo sentence (People v. Osslo...
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