People v. Bueno

• Decision Date: 20 January 1960
• Docket Number: Cr. 6684
• Citation: 2 Cal.Rptr. 62,177 Cal.App.2d 235
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of State of California, Plaintiff and Respondent, v. Manuel Rojas BUENO, Defendant and Appellant.

Page 62

2 Cal.Rptr. 62

177 Cal.App.2d 235

PEOPLE of State of California, Plaintiff and Respondent, v. Manuel Rojas BUENO, Defendant and Appellant.

Cr. 6684.

District Court of Appeal, Second District, Division 3, California.

Jan. 20, 1960.

David C. Marcus, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Marvin L. Part, Deputy Atty. Gen., for respondent.

FORD, Justice.

This is an appeal from an order denying a motion made pursuant to the provisions of section 1203.4 of the Penal Code. The basis of such denial was that the appellant had not been placed on probation and, accordingly, was not entitled to proceed in accordance with the provisions of that section. ¹

On June 1, 1956, the appellant entered a plea of guilty to the crime of burglary. The court determined the offense to be burglary of the second degree. The minutes of the superior court state that on June 22, 1956, probation was denied and the judgment of the court was that the appellant be punished by imprisonment in the county jail of the county of Los Angeles for the term of one year. However, the record discloses that, after the court had read the report of the probation officer and had heard the suggestion of the appellant's attorney that he be placed on probation, the following occurred 'The Court: The only thing about that, he was on probation for another offense. He has hardly been out time enough to get his breath. He is not a fit subject for probation. Probation heretofore granted is going to stay in effect, but this man has to learn that probation means something. There being no legal cause why judgment and sentence should not be pronounced, it is the judgment and sentence of the Court that probation is denied; the defendant is sentenced to one year in the County Jail. Good time, if earned; road camp or honor farm, recommended. Twelve days will be suspended. Bail exonerated. The defendant is remanded.'

On November 25, 1958, the appellant filed the notice of the motion, the denial of which has resulted in this appeal. In the affidavit in support of his motion, the appellant stated that on May 16, 1957, he 'completed the sentence imposed by said Court, and was released from custody.' He further stated that the Immigration Department of the United States Department of Justice had initiated proceedings to deport him which proceedings were based on the conviction above mentioned and on a conviction of petit theft on March 12, 1956, that he was 48 years of age and had resided in the United States since about November 15, 1913, that he was married to a citizen of the United States and had two children who were born in this country, that 'his separation from his wife and family will cause him great mental and spiritual suffering,' that he was steadily employed, was earning approximately $65 per week and was the sole support of his family, that he had been law-abiding since his release from custody, and that the granting of his motion would remove the basis for his deportation. Cf. In re Ringnalda, D.C., 48 F.Supp. 975. In denying the motion on December 23, 1958, the court stated in part: 'That was a definite one-year sentence.' With respect to the provision for the suspension of twelve days, the court said: 'That only gives me jurisdiction to come back into the picture during the time he is serving. That's all in the world it does, counsel * * *. In suspending sentence, this gives me a chance to come back in if I want to, during the time of the sentence.'

The failure to enter in the minutes the provision as to a suspension of twelve days is not determinative of this matter. The trial court, if necessary so that justice may be done, may order such minutes to be amended so that the true facts are fully reflected therein with respect to the action of the court. In re Mize, 11 Cal.2d 22, 26, 77 P.2d 472; People v. Ward, 141 Cal. 628, 630, 75 P. 306; People v. O'Brien, 4 Cal.App. 723, 727, 89 P. 438.

In support of the order of the trial court, the respondent relies on People v. Rickson, 112 Cal.App.2d 475, 246 P.2d 700, and Ellis v. Dept. of Motor Vehicles, 51 Cal.App.2d 753, 125 P.2d 521. In the Rickson case, the defendant was convicted of the crime of forgery. The judge stated that probation was denied but upon sentencing the defendant to six months in the county jail he stated that the time of three months of that sentence was suspended. The defendant, on appeal, complained of the action of the court as being an erroneous denial of probation. The appellate court said, 112 Cal.App.2d at page 481, 246 P.2d at page 704: 'Had the trial court not considered defendant's formal application for probation and denied it, the effect of the suspended three months sentence might have constituted a probation order, In re Herron, 217 Cal. 400, 19 P.2d 4, but where there is an application for probation, a hearing had upon it, and an express denial of probation, there is no room for an implication or construction of the immediately following order suspending part of the sentence, and according to Ellis v. Department of Motor Vehicles, 51 Cal.App.2d 753, at page 757, 125 P.2d 521, it is said that in such a case, where the court does not act under the probation law, it has no power to suspend execution of any part of the sentence, and an order purporting to do so is void. See, also, In re Taylor, 140 Cal.App. 102, 34 P.2d 1036; In re Clark, 70 Cal.App. 643, 646, 234 P. 109; and In re Eyre, 1 Cal.App.2d 451, 36 P.2d 842, where it is similarly held that where probation is denied no part of the sentence imposed may be suspended. Defendant should not be heard to complain.'

In the Ellis case, the petitioner sought to obtain a license to drive motor vehicles which had been denied him by the respondent department. He contended that the effect of two convictions had been wiped out by certain proceedings which, he claimed, constituted a grant to him of probation and a subsequent dismissal of the charges under the probation law. The court said, 51 Cal.App.2d at page 757, 125 P.2d at page 523: 'The allegations of the petition in regard to the supposed granting of probation are: 'that an application for probation was filed; that upon the hearing had thereon the Court entered its order in effect as follows: Probation denied. Sentence on the 502 V. C. charge is 30 days in the City Jail and a fine of $100.00, 20 days of said sentence suspended upon the payment of the $100.00 fine; Sentence on the 481 V. C. charge is 1 day in the City Jail, suspended * * *.' If the words 'probation denied' had been excluded from the order of the court here, leaving only the suspension of a part of the sentence imposed, its action would have been regarded as an informal order granting probation and given effect as such. (In re Herron, 1933, 217 Cal. 400, 404, 19 P.2d 4; Ex parte Slattery, 1912, 163 Cal. 176, 124 P. 856; People v. Wallach, 1935, 8 Cal.App.2d 129, 132, 47 P.2d 1071.) But here we have an application for probation, a hearing upon it and an express denial of probation. Upon such a record there is no room for an implication or construction of the immediately following orders suspending part of one sentence and all of the other as an informal granting of probation. (In re Taylor, 1934, 140 Cal.App. 102, 34 P.2d 1036; In re Eyre, 1934, 1 Cal.App.2d 451, 36 P.2d 842.) Where the court does not act under the probation law it has no power to suspend execution of any part of the sentence, and an order purporting to do so is void. (In re Taylor, supra; In re Eyre, supra; In re Howard, 1925, 72 Cal.App. 374, 237 P. 406; In re Clark, 1925, 70 Cal.App. 643, 646, 234 P. 109.) Since there was no probation in these cases the attempt to dismiss them under the probation law is void, and the convictions still stand as a bar to the issuance of the license petitioner seeks.'

The Rickson and Ellis cases support respondent's position. However, while the Supreme Court does not purport to overrule those cases in Oster v. Municipal Court, 45 Cal.2d 134, 287 P.2d 755, the reasoning in the Oster case supports the conclusion that no ironclad formula is to be applied in determining whether probation was granted but rather that 'the precise circumstances of each case must be closely examined to determine whether in fact probation was finally granted or denied' (45 Cal.2d at page 139, 287 P.2d at page 759). The Supreme Court said, at pages 139-140 of 45 Cal.2d, at page 759 of 287 P.2d: 'A court has no power to suspend a sentence except as an incident to granting probation. (Pen.Code, §§ 1203, 1203.1; People v. Sidwell, 1945, 27 Cal.2d 121, 129-130, 162 P.2d 913, and cases there cited; People v. Williams, 1949, 93 Cal.App.2d 777, 779, 209 P.2d 949.) Therefore, when a court after pronouncing the judgment and sentence of imprisonment does order all or part of the sentence to be suspended such order is considered to be an 'informal' grant of probation (In re Torres, 1948, 86 Cal.App.2d 178, 179, 194 P.2d 593) said to be 'the equivalent of a formal order.' (In re Herron, 1933, 217 Cal. 400, 404, 19 P.2d 4; see also People v. Wallach, 1935, 8 Cal.App.2d 129, 131-133, 47 P.2d 1071.) This latter rule of construction, it has been held, will not be applied when such an order of suspension is made after the court has already expressly denied probation and it is clear that a grant of probation was not intended. In such cases the suspension order has been said to be ineffectual as a grant of probation. (People v. Rickson, 1952, 112 Cal.App.2d 475, 481, 246 P.2d 700; Ellis v. Department of Motor Vehicles, 1942, 51 Cal.App.2d 753, 757, 125 P.2d 521; People v. Lopez, 1941, 43 Cal.App.2d Supp. 854, 860, 110 P.2d 140; see also In re Eyre, 1934, 1 Cal.App.2d 451, 36 P.2d 842; In re Taylor, 1934, 140 Cal.App. 102, 34 P.2d 1036: In re Howard, 1925, 72 Cal.App. 374, 378-379, 237 P. 406; In re Clark, 1925, 70 Cal.App. 643, 646, 234 P. 109.) However, the precise circumstances...