People v. Brown, Cr. 6362
| Citation | 172 Cal.App.2d 30,342 P.2d 410 |
| Decision Date | 14 July 1959 |
| Docket Number | Cr. 6362 |
| Court | California Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Bob BROWN, Defendant and Appellant. |
Harvey E. Byron, North Hollywood, for appellant.
Stanley Mosk, Atty. Gen., and William E. James, Asst. Atty. Gen., for respondent.
Defendant pleaded guilty to a charge of escape from a state prison (violation of section 4531 of the Penal Code). Thereupon a probation report was ordered, and the matter was continued five days--to February 11, 1958. On said date, the defendant was sentenced to imprisonment in the state prison, probation for five years was granted, and execution of the sentence was suspended.
On May 21, 1958, in the presence of defendant and his counsel (deputy public defender), the judge said that he had made an error in law in giving defendant probation. Then the judge revoked the order granting probation and sentenced defendant to state prison for the term prescribed by law. Defendant appeals from the 'judgment' rendered on May 21, 1958. He contends that the court erred as a matter of law in revoking probation. His argument is that the court was empowered under section 1203 of the Penal Code to grant probation, and since the court in the exercise of its discretion granted probation, and since there was no error in law in granting probation, and since there was no evidence that appellant had violated the terms of probation, the order revoking probation should be reversed. He argues further that probation was revoked 'on an erroneous point of law.' With reference to the reason for revoking probation, the reporter's transcript shows, as above stated, that the judge said he had made an error in law in granting probation. The record does not show, however, that the judge made any statement designating the error of law so referred to by him. With reference to the reason for revoking probation, appellant states in his brief that the trial judge 'feeling that it was not within his power to grant defendant probation by determining the facts and exercising his discretion, revoked the probation.'
Respondent asserts that appellant was not eligible for probation, and that the order revoking probation was proper.
Section 4531 of the Penal Code provides, in part: 'Every prisoner committed to a State prison who escapes * * * from any prison road camp * * * or other prison camp * * * while under the custody of prison officials * * * is punishable by imprisonment in a State prison for a term of not less than one year * * *.'
Section 1203 of the Penal Code (Stats.1951, Ch. 1438, p. 3396), in effect when the escape occurred (July, escape from a state escape occurred (July, 1954), provides, in part: 'Probation shall not be granted to any defendant who shall have been convicted of robbery, burglary, * * * escape from a state prison, * * * and who at the time of the perpetration of said crime * * * was himself armed with a deadly weapon * * * nor to a defendant who used or attempted to use a deadly weapon upon a human being * * * nor to one who in the perpetration of the crime * * * wilfully inflicted great bodily injury or torture, nor to any defendant unless the court shall be satisfied that he has not been twice previously convicted of felony in this State nor twice previously convicted in any other place or places of public offenses which would have been felonies if committed in this State; nor to any defendant convicted of the crime of robbery, burglary of the first degree, * * * escape from a state prison * * * unless the court shall be satisfied that he has never been previously convicted of a felony in this State nor previously convicted in any other place of a public offense which would have been a felony if committed in this State; * * *.' (Italics added.)
A brief or summary statement of the pertinent portion of said section 1203 is that probation shall not be granted to a defendant who has been convicted of escape from a state prison, unless the court shall be satisfied that the defendant has not been previously convicted of a felony.
In the present case the information alleged that the defendant did unlawfully 'escape from Honor Camp No. 21, Chilao, while under the custody of prison officials, * * * he, the said defendant, being then and there a prisoner committed to a state prison under and by virtue of a judgment of conviction of said defendant in the Superior Court of the State of California, in and for the County of Los Angeles.' On February 11, during the proceeding wherein probation was granted, the defendant's counsel said: that in 1952 the defendant was sentenced for 'insufficient funds checks' from the 'Pomona Court,' and he was taken to Chino and had served almost all of his sentence; that he had about 'six months to go' when he walked off of a road work camp and went to New Mexico, where he got into difficulty and was sentenced to the New Mexico penitentiary; that he 'did approximately 40 months all told' and was released to the custody of the California authorities in January, 1958.
It thus appears that the record before the trial judge showed that defendant had been previously convicted of a felony in California. The record also showed that after the defendant had escaped from prison in California he had been sentenced in New Mexico to the New Mexico penitentiary, but the record (before the trial judge herein) did not show that the offense committed in New Mexico would have been a felony if it had been committed in California. It cannot be said that by reason of the New Mexico conviction the defendant was ineligible for probation in California on the conviction of escape from state prison.
Appellant argues that the conviction for which he was under commitment to the state prison when he escaped could not be deemed a previous conviction of a felony within the meaning of said section 1203, 'since a person could not be committed to a State Prison without first having been convicted of a felony'; and if such a conviction is a previous conviction within the meaning of the section, then the portion of the section with reference to being 'previously...
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