Larsen, In re, Cr. 5640
| Decision Date | 27 May 1955 |
| Docket Number | Cr. 5640 |
| Citation | 44 Cal.2d 642,283 P.2d 1043 |
| Court | California Supreme Court |
| Parties | In re Charies LARSEN on Habeas Corpus. |
Charles Larsen, in pro per., and Richard M. Grossberg, Sacramento, for petitioner.
Edmund G. Brown, Atty. Gen., and Doris H. Maier, Deputy Atty. Gen., for respondent.
Petitioner is now serving sentences at Folsom State Prison under two judgments of conviction, one a 1938 conviction of first degree burglary (Los Angeles Superior Court No. 73864), the other a 1953 conviction of second degree burglary (San Francisco Superior Court, No. 49121). In this petition for the writ of habeas corpus petitioner alleges that he is being illegally restrained of his liberty, first because neither judgment of conviction sets forth the term or duration of the sentence imposed, and secondly because there is no legal commitment to sustain his imprisonment under the 1938 judgment.
On November 2, 1938, petitioner pleaded guilty in the superior court in and for the county of Los Angeles to the crime of first degree burglary and was sentenced to the state prison at San Quentin 'for the term prescribed by law.' Execution of the judgment and sentence was suspended and petitioner was placed on probation for five years on condition that he serve the first eight months in the county jail. This he did. Thereafter he was arrested in San Francisco for an offense herein undisclosed and committed to the Preston School of Industry. The Los Angeles Superior Court revoked his probation under date of January 25, 1940, issued a bench warrant, and placed the matter off calendar. Upon his release from Preston he was arrested upon the Los Angeles warrant. A hearing was held on December 26, 1940, at which he was present. He was ordered restored to probation for a period of three years. On January 18, 1942, he was convicted of a felony in Texas and sentenced to five years in the Texas state prison. On March 19, 1942, the Los Angeles Superior Court revoked his probation, a bench warrant was issued, and the cause was placed off calendar. On May 5, 1947, he was arrested on the 1942 bench warrant and a hearing was held, petitioner being present. The court restored him to probation for a period of five years on condition that he serve the first year in the county jail. He served the year. On December 6, 1948, his probation was revoked because of his failure to report and a bench warrant was issued. In March, 1949 he was arrested for a violation of the Dyer Act, 18 U.S.C.A. §§ 2311-2313, in Nevada. He was subsequently convicted of that offense in the federal district court in that state and sentenced to federal prison. In August, 1952 he was released. On October 29, 1953 he pleaded guilty in the superior court in and for the city and county of San Francisco to a charge of second degree burglary and was sentenced to San Quentin 'for the term prescribed by law.' He was forthwith delivered by the sheriff to the Director of Corrections at San Quentin. Upon his arrival he notified the prison officials of the December 6, 1948, bench warrant issued by the Los Angeles Superior Court for violation of probation.
On August 20, 1954, this application in habeas corpus was filed. Petitioner alleged that he had been informed by the prison officials that a commitment under the 1938 Los Angeles judgment had been lodged against him and that he was to serve the sentence contained therein. He alleged that the court records in the Los Angeles action as received at San Quentin showed that the last order entered therein was the order of December 6, 1948, and that there was no order of record thereafter revoking suspension of execution of sentence. He therefore contends that the order suspending execution of judgment and sentence is still operative.
Petitioner is correct in his contention that some form of revocation of the suspension of execution of the judgment and sentence must appear of record to support a commitment under the original sentence. In re Torres, 86 Cal.App.2d 178, 180, 194 P.2d 593; In re Giannini, 18 Cal.App. 166, 122 P. 831. The court has discretionary power to grant or to revoke probation. In re Dearo, 96 Cal.App.2d 141, 143, 214 P.2d 585. Section 1203.2 of the Penal Code provides that probation may be revoked if the court in its judgment shall have reason to believe that the person placed on probation is engaging in criminal practices or has become abandoned to a vicious life, and that upon such revocation the court may revoke a suspension of execution 'whereupon the judgment shall be in full force and effect'. The subsequent convictions of the petitioner would furnish sufficient grounds for revocation. Under Section 1203.3 the court has authority at any time during the period of probation to revoke, modify or change its order of suspension.
In this return the Attorney General has transmitted to this court certified copies of the record in the Los Angeles action. This record shows that a minute order was entered on November 30, 1953, reading as follows: Under Penal Code, Section 1213 a certified copy of the abstract of judgment constitutes the commitment. Such a certified copy was placed in the hands of the warden at San Quentin. Penal Code, § 1216. It therefore appears that a valid commitment under the 1938 judgment was duly issued.
Petitioner urges that he is wrongfully deprived of his liberty under the 1938 judgment because he received no notice or hearing before revocation of his probation and suspension. After his probation was revoked on two prior occasions he was given notice and was present in court at the hearings held thereon. In each instance his probation was reinstated. However such reinstatement is a matter of clemency. There is neither a constitutional right, Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566, nor a statutory right, In re Davis, 37 Cal.2d 872, 873-875, 236 P.2d 579, to notice and hearing preceding revocation of probation.
There is no merit in petitioner's contention that he is entitled to deduction from his prison sentence of the 20 months he served in the county jail during probation. Section 1203.2 of the Penal Code provides that upon revocation of suspension a probationer shall be delivered to the proper officer 'to serve his sentence, less any credits herein provided for.' However the legislature in 1947 recognized 'the inconsistency of applying a statutory system of credits to a prison term fixed under the indeterminate sentence law' and abolished the system in the prisons...
To continue reading
Request your trial
-
Lynch, In re
...has met the test of time. (See, e.g., In re Sandel (1966) 64 Cal.2d 412, 415, 50 Cal.Rptr. 462, 412 P.2d 806; In re Larsen (1955) 44 Cal.2d 642, 647, 283 P.2d 1043; People v. Kostal (1958) 159 Cal.App.2d 444, 451--453, 323 P.2d 1020.)7 This, too, is settled doctrine. (See, e.g., In re Mills......
-
In re Corpus
...range the Legislature has identified, and under criteria the Legislature has articulated. (See § 3041; cf. In re Larsen (1955) 44 Cal.2d 642, 646–647, 283 P.2d 1043 ; In re Stanley (1976) 54 Cal.App.3d 1030, 1038, 126 Cal.Rptr. 524.)Indeed, Rodriguez applied the traditional, deferential tes......
-
People v. Harrison, A036918
...has reason to believe" the probationer's conduct so warrants. The statute gives broad discretion to the trial court. (In re Larsen (1955) 44 Cal.2d 642, 645, 283 P.2d 1043; In re Coughlin, supra, 16 Cal.3d at p. 56, 127 Cal.Rptr. 337, 545 P.2d 249; People v. Walker (1963) 215 Cal.App.2d 609......
-
People v. Rodriguez
...is largely discretionary." (In re Coughlin, supra, 16 Cal.3d at p. 56, 127 Cal.Rptr. 337, 545 P.2d 249, citing In re Larsen (1955) 44 Cal.2d 642, 645, 283 P.2d 1043 and In re Davis (1951) 37 Cal.2d 872, 875, 236 P.2d Third, the cases provide no authority for adhering to a more stringent sta......
-
Punishment
...or a hearing if the interests of justice so require. PC §1203.2(a) and (b). The court has discretionary power here, In re Larsen (1955) 44 Cal.2d 642, 645, and its decision will not be disturbed on appeal absent a showing that it acted in an arbitrary or capricious manner. People v. Edwards......
-
Table of cases
...487, §10:110.1 In re Kent W. (1986) 181 Cal.App.3d 721, 724, §1:11.12 In re Ketchel (1968) 68 Cal.2d 397, Appendix E In re Larsen (1955) 44 Cal.2d 642, §10:94 In re Lavoyne M. 221 Cal.App.3d 154, 159 (1990), §7:77.2 In re Lewallen (1979) 23 Cal.3d 274, §§3:56.4, 9:13.1 In re Littlefield (19......