Jordan, In re

• Citation: 51 Cal.Rptr. 221,242 Cal.App.2d 254
• Decision Date: 13 May 1966
• Docket Number: Cr. 3994
• Court: California Court of Appeals Court of Appeals
• Parties: In re Enrique Jacques JORDAN on Habeas Corpus.

Page 221

51 Cal.Rptr. 221

242 Cal.App.2d 254

In re Enrique Jacques JORDAN on Habeas Corpus.

Cr. 3994.

District Court of Appeal, Third District,

California.

May 13, 1966.

Frederick H. Ebey, Court Appointed Counsel, Aptos, for petitioner.

Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Raymond Momboisse, Deputy Atty. Gen., Sacramento, for respondent.

REGAN, Justice.

Enrique Jacques Jordan by means of a petition for a writ of habeas corpus seeks to be released from Folsom Prison and delivered to the Los Angeles Superior Court for further proceedings.

Petitioner is imprisoned pursuant to a judgment (designated case number 119716, robbery) and commitment of that court for the crime of robbery in the second degree, entered on November 1, 1961. Petitioner is also imprisoned pursuant to a second judgment (designated case number 249260, possession of narcotics) and commitment of that court on his plea of guilty for the crime of possession of narcotics (Health and Saf. Code, § 11500) and to a prior federal narcotics felony conviction, also entered on November 1, 1961.

In September 1948, petitioner was convicted in the Los Angeles Superior Court of the crime of second degree robbery. The proceedings were suspended and probation granted for a period of five years under the following conditions: 'Said defendant must serve the first year of his probationary period in the County Jail, with good time allowed, if earned. Upon his release from the County Jail, Defendant Enrique Jordan must return to Texas and remain out of the State of California during his probationary period and said defendant must report as required.' No appeal was taken from this order.

On November 2, 1949, a probation officer for Los Angeles County filed a report with the court recommending a revocation of probation and an imposition of sentence against petitioner. The revocation of probation was recommended on the grounds that petitioner had been sentenced in the State of Texas on October 7, 1949, to a term of two years for theft. The court, on November 2, 1949, revoked the probation and a bench warrant was ordered issued.

Petitioner, twelve years later, on October 2, 1961, appeared in Los Angeles Municipal Court charged with a violation of section 11500 of the Health and Safety Code (possession of narcotics), as well as six violations of section 476 of the Penal Code (forgery). He was not represented by counsel at this appearance. Preliminary examination was set for October 6, 1961; on this date petitioner, then represented by the deputy public defender, entered a plea of guilty to the felony offense of section 11500 of the Health and Safety Code (case number 249260), and was remanded to the Superior Court. According to the record, the court also ordered the dismissal of the six counts of violation of section 476 of the Penal Code, on motion of the People.

On November 1, 1961, petitioner appeared in Superior Court represented by the deputy public defender. The information was amended to charge a prior felony conviction, which conviction petitioner admitted. Probation was denied and the sentence in case number 249260 (possession of narcotics) was imposed to run concurrently with the sentence in case number 119716 (robbery).

At the time of petitioner's appearance in Superior Court on November 1, 1961, the judge refused to order petitioner hospitalized, stating petitioner was ineligible therefor, and imposed the state prison sentence in case number 249260. Prior to this sentencing the court, noting that in case number 119716 probation had been revoked on November 2, 1949, proceeded as follows:

'THE COURT: I don't have the file in Case 119716, but I see no reason not to rule on the matter. It is my understanding that he was on 5 years probation for second degree robbery and that probation has been revoked; is that correct, Mr. Jordan?

'THE DEFENDANT: It was out-of-state probation, your Honor.

'THE COURT: I beg your parden?

'THE DEFENDANT: It was out-of-state probation.

'THE COURT: Unless you have some objection, Counsel, I will impose sentence in that case and make it run concurrently.

'MR. MONTES: No objection, your Honor.

'THE COURT: Do you know where the file is in that case, Mr. Robinson?

'THE CLERK: It is in the basement. It is an old case.

'THE COURT: I see that is why it isn't here, it is such an old case. Probation was revoked November 2nd, 1949. Apparently the case is still under the jurisdiction of this Court.

'In case 119716, probation heretofore revoked will remain revoked. The defendant is sentenced to State Prison for the term prescribed by law and will be remanded to the custody of the Sheriff to be by the Sheriff delivered to the Director of Corrections, California Institution for Men at Chino. Time to run concurrently with time in Case 249260.

'In Case 249260, I have considered the probation report. Probation is denied. The defendant is sentenced to State Prison for the term prescribed by law and will be remanded to the custody of the Sheriff to be by the Sheriff delivered to the Director of Corrections, California Institution for Men at Chino; time to be served to run concurrently with time to be served in Case 119716.'

The principal question to be decided in this proceeding is whether the trial court erred in failing to hold a hearing on the issue of the revocation of petitioner's probation on November 1, 1961. We answer this question in the affirmative.

The order of the trial court on November 2, 1949, revoking petitioner's probation and issuing a warrant for his arrest was proper.

'It is well established that it is unnecessary to hold a hearing in order to revoke probation. Although probation may not be revoked arbitrarily (In re Bine, 47 Cal.2d 814, 817, 306 P.2d 445), the court may act upon the report of the probation officer and in defendant's absence.' (People v. De Waele, 224 Cal.App.2d 512, 515, 36 Cal.Rptr. 825, 826.)

In People v. Siegel, 235 Cal.App.2d 522, at page 524, 45 Cal.Rptr. 530, at...