People v. Carter

• Decision Date: 26 March 1965
• Docket Number: Cr. 1689
• Citation: 43 Cal.Rptr. 440,233 Cal.App.2d 260
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Phillip CARTER, Defendant and Appellant.

Page 440

43 Cal.Rptr. 440

233 Cal.App.2d 260

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Phillip CARTER, Defendant and Appellant.

Cr. 1689.

District Court of Appeal, Fourth District, California.

March 26, 1965.

Hearing Denied May 19, 1965.

Langford, Langford & Lane and J. Perry Langford, San Diego, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.

FINLEY, Justice pro tem.

Defendant appeals from an order again granting probation after setting aside an order revoking a prior order granting probation.

Defendant pleaded guilty to a violation of Penal Code, section 459. The specific charge was forcibly entering an automobile with intent to steal certain articles of clothing therein. On May 29, 1956, imposition of sentence was suspended and the court placed defendant on probation for four years. He was given permission to travel to Indiana after discharge from the Marine Corps and was accepted for supervision by the Indiana authorities. On April 29, 1959, he was sentenced to 180 days by an Indiana Court for malicious destruction of property. The California court was notified of this action on June 23, 1959 and on that date made an order revoking probation and issued a bench warrant for defendant's arrest 'to be effective in the State of California only.' This limitation was strictly in accordance with Penal Code, section 1198 and in conformity with the limiting factor that state processes extend only to state boundaries, excepting only as this is modified by interstate compacts. The record is silent on any such situation here. Defendant was apprehended in California and brought before the court on July 27, 1964. He told the court that the Indiana authorities has told him that his probation was over. The court set aside the revocation of probation and again placed defendant on probation for three years, that is, until July 26, 1967, on condition that he serve six months in custody and pay $100 for the cost of supervision.

Defendant first contends that the order of July 27, 1964, granting probation, was in excess of the court's jurisdiction, because the defendant's previous probation had terminated without having been validly revoked and because the trial judge in his order revoking the original order granting probation limited the bench warrant to service in California although he was aware that defendant was or had been imprisoned in Indiana. The judge indicated that his purpose and intent in so limiting the warrant was to save the people of California money. Apart from any other considerations, the merit of this avowed purpose can hardly be questioned. It is not necessary that a defendant be present for the pevocation of his probation if good cause dictates the propriety thereof. (In re Davis, 37 Cal.2d 872, 236 P.2d 579.) His criminal conduct, conviction and incarceration in Indiana constituted an ample showing of good cause.

The scope of the appeal as stated in defendant's notice of appeal is as follows:

'You will please take notice that JAMES PHILLIP CARTER, the defendant above named, hereby appeals from the order granting him probation in the above entitled matter made on July 27, 1964.' [Italics ours.]

In appellant's brief, these two contentions are made:

1. The order granting appellant probation made on July 27, 1964, was in excess of the jurisdiction of the court, because his previous probation had terminated without having been validly revoked.

2. The complaint fails to state a public offense, in that it does not allege that the automobile in question was locked.

Defendant's plea of guilty was entered on May 11, 1956, in the municipal court by defendant, he being represented at the time by counsel. Proceedings based thereon took place in the superior court on May 15, 1956. The original order suspending imposition of sentence for a period of four years and granting defendant probation was made on May 29, 1956.

We turn first to defendant's point No. 2 for the purpose only of discussing it as it relates to the question of jurisdiction. If a public offense is stated, even though inartfully, the court had jurisdiction to proceed. If the complaint failed to state a public offense then lack of jurisdiction would be manifest on the face of the complaint. The charge set forth in the complaint to which defendant entered his plea of guilty reads as follows:

'Personally appeared before me this 14th day of May, 1956, Peter Robert Bechere, of Oceanside, in the County of San Diego, State of California, who, being first duly sworn, complains and says that the crime of P.C. 459 has been committed by said defendant as follows: That said James Phillip Carter on or about the 8 day of May, 1956, in Oceanside Judicial District, in the said County of San Diego, State of California, and before the making or filing of this Complaint, did willfully, unlawfully and feloniously forcibly enter an automobile, to wit, 56 Chev., Calif. lic., DAD 412 a vehicle owned by Peter Robert Bechere, B Co., 1 Bn., 7th Mar. Div. Camp Pendleton, with intent to then and there take, steal and carry away certain articles of clothing therein, while said vehicle was parked in the 900 Blk. No. Hill St., in the City of Oceanside, County of San Diego, State of California.'

Penal Code, section 459 confines the definition of burglary, as it relates to a vehicle, to the entry of a '* * * vehicle as defined by said code [Vehicle Code] when the doors of such verhicle are locked * * *.' Defendant urges that since it is not charged in the complaint that the vehicle was locked, the complaint fails to state a public offense. This point may properly be raised at this time for judgment has not yet been pronounced.

In People v. Arguello, 59 Cal.2d 475, 476, 30 Cal.Rptr. 333, 334, 381 P.2d 5, 6, the court states:

'In granting probation after a conviction, the trial court may suspend the imposition of sentence, in which case no judgment of conviction is rendered, or it may impose sentence and order the execution thereof stayed. In the latter case a judgment of conviction has been rendered.' Citing In re Phillips, 17 Cal.2d 55, 58, 109 P.2d 344, 132 A.L.R. 644.

Defendant cites the case of People v. McGee, 1 Cal.2d 611, 36 P.2d 378, as authority for the proposition that failure to state a public offense is jurisdictional and can be raised at any time, before or after judgment. McGee involved the statute of limitations. The information filed therein showed on its face that the statute had run. The court held that since the running of the statute is jurisdictional and since the information showed on its face that the statute had run, the court had no jurisdiction to proceed with the case and the judgment was therefore void and could be questioned even after the defendant had served three years of the sentence imposed upon his plea of guilty.

The present case differs from McGee in that the complaint does charge a criminal offense even though the draftsmanship of the complaint leaves something to be desired and an element incorporated into the code section is not specifically set forth. Therefore the emerging question is not one of jurisdiction for a public offense is obviously stated, but of mere ambiguity or uncertainty, which is a waiverable defect. See Witkin, California Criminal Procedure, sections 220-224. We are satisfied that the offense of burglary is sufficiently charged and that jurisdiction of the court is implicit in the language actually used in the complaint. While it is conceded that a vehicle with all doors unlocked could still be forcibly entered by breaking the glass and entering instead of merely opening a door, the complaint does state that the crime of Penal Code, section 459, has been committed. The only crime of Penal Code, section 459, involving a vehicle is the entry of a vehicle when the doors of such vehicle are locked. Defendant entered his plea of guilty without demurrer. He was represented by an attorney and charged with knowledge that he was pleading guilty to the only vehicle violation included in 'the crime of' Penal Code, section 459, which is the entry of a locked vehicle with intent to commit grand or petit larceny. Failure to demur or in any wise question the pleading in either the municipal or superior courts would constitute a waiver of any lack of definition. (People v. Rankin, 169 Cal.App.2d 150, 159, 337 P.2d 182; People v. Gilbert, 217 Cal.App.2d 662, 664, 31 Cal.Rptr. 920.)

Penal Code, section 952 provides that a charge shall be sufficient:

'* * * if it contains in substance, a statement that the accused has committed some public offense therein specified.' * * * ('the crime of P.C. § 459') 'It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.' [Italics ours.]

Further guidelines for use in such considerations are contained in Penal Code, section 4, which provides:

'The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.'

See also People v. Codina, 30 Cal.2d 356, 181 P.2d 881.

The remaining issue is the validity of the order granting probation made on July 27, 1964, which in turn depends upon the validity of the order of revocation of the probation originally granted to defendant on May 29, 1956, and the bench warrant for defendant's arrest and return to court issued following this order of revocation. Since 1951, an order granting probation is appealable on its merits. (Pen.Code, §§ 1237 & 1466; People v. Donohoe (1962), 200 Cal.App.2d 17, 19 Cal.Rptr. 454; People v. Melton (1954), 125 Cal.App.2d Supp. 901, 271 P.2d 962, ...