People v. Davidson, Cr. 9309

• Decision Date: 24 April 1972
• Docket Number: Cr. 9309
• Citation: 25 Cal.App.3d 79,101 Cal.Rptr. 494
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William Richard DAVIDSON aka Sonny Davidson, Defendant and Appellant.

Page 494

101 Cal.Rptr. 494

25 Cal.App.3d 79

PEOPLE of the State of California, Plaintiff and Respondent, v. William Richard DAVIDSON aka Sonny Davidson, Defendant and Appellant.

Cr. 9309.

Court of Appeal, First District, Division 2, California.

April 24, 1972.

Martin E. Henner, Palo Alto, (Under appointment of the Court of Appeal), for defendant-appellant.

Evelle J. Younger, Atty. Gen., of Cal., Robert R. Granucci, Eugene Kaster, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

KANE, Associate Justice.

Defendant William Richard Davidson appeals from the trial court's order revoking probation.

On March 16, 1966 appellant was convicted of marijuana possession and was sentenced to state prison for the term prescribed by law. Execution of the sentence was suspended and appellant was placed on three years' probation. On October 19, 1966 the probation officer moved to revoke probation, alleging that appellant had violated certain conditions of probation. Instead of revoking probation, however, the court, at appellant's request adjourned all criminal proceedings and initiated a narcotic commitment procedure pursuant to section 3051 of the Welfare and Institutions Code. ¹ After having received reports from the two appointed medical examiners, the court found that appellant was a narcotic addict or a person in imminent danger of becoming addicted to the use of narcotics. Whereupon, on November 14, 1966, appellant was committed to the Department of Corrections for confinement at the California Rehabilitation Center ('C.R.C.')

On February 21, 1968 appellant moved to modify the probation on the ground that he was then on parole from C.R.C. On March 6, 1968 the court denied appellant's motion indicating that the motion could only be considered after the narcotics authorities had referred him back to the court.

On January 19, 1970 appellant was again sentenced to state prison, this time for possession of heroin. Thereafter, on September 4, 1970, the court revoked the March 16, 1966 probation, and the sentence of March 1966 was ordered into effect and made concurrent with the January 1970 sentence.

Appellant's first contention, in essence, is that since the March 16, 1966 court order placed him on three years' probation which was not revoked or extended during the term of the probation, the court was without jurisdiction to revoke the same on September 4, 1970 when the probationary period had already expired (Pen.Code, § 1203.3; In re Clark (1959) 51 Cal.2d 838, 337 P.2d 67).

Thus, the issue presented is whether the probationary period was tolled during the narcotics commitment. For the reasons which follow, we answer that question in the affirmative.

Penal Code, section 1203.3, which provides in pertinent part that 'The Court shall have authority at any time during the term of probation To revoke, modify, or change its order of suspension of . . . execution of sentence' (emphasis added), must be read together with the statute governing commitment to C.R.C. (Welf. & Inst.Code, ch. 1, arts. 1 through 5). This statute provides in mandatory terms that the judge shall adjourn all criminal proceedings when it appears to him that a person convicted of a crime is a narcotic addict or is in imminent danger of becoming such (§ 3051). In addition, the whole statutory scheme envisions the return of the committed defendant to the court where the criminal proceedings were suspended. ²

Probation essentially calls for continuing supervision of the probationer and maintaining jurisdiction and power in the trial court to act in respect to such supervision (In re Osslo (1958) 51 Cal.2d 371, 380, 334 P.2d 1). But once the trial court has exercised its discretion under section 3051 to direct the institution of narcotics rehabilitation proceedings, the criminal court is without jurisdiction to proceed with the criminal case until those proceedings have terminated (People v. Gonzales (1969) 275 Cal.App.2d 741, 743, 80 Cal.Rptr. 324).

With commendable candor the Attorney General, in his brief, has cited People v. Victor (1965) 62 Cal.2d 280, 42 Cal.Rptr. 199, 398 P.2d 391, which contains language suggesting that at the time of appellant's commitment to C.R.C., precise statutory authority to do so was lacking.

The court in Victor described the hiatus ³ as follows: 'A defendant who upon being found guilty is not incarcerated but is released on probation could, of course, become addicted (or in imminent danger thereof) After conviction, i.e., during his probationary period outside prison walls; in such event there would have been no opportunity to detect his condition at the pre-sentencing stage. Here again is a situation for which no provision has ben made in the subject legislation. Two alternatives appear under the law as it now reads, according to whether in granting probation the criminal court suspended (1) the imposition or (2) the execution of the sentence. If the court suspended (i.e., deferred) the imposition of sentence, it would seem that upon development of the probationer's addiction problem commitment proceedings could properly be instituted under article 2. Although the language of sections 6450 and 6451 (of the Penal Code) may be read as implying that such proceedings are to be instituted, if at all, promptly 'Upon conviction' of the defendant, that inference is not compelled. The real gap in the statutory scheme appears when the court imposes sentence but suspends its execution, and thereafter the probationer develops an addiction problem: in such case neither article 2 nor article 3 appears to be available, as they now read. Of course in many such instances the process of becoming addicted will involve conduct justifying revocation of probation, and the defendant can then be treated upon his return to custody; the conduct could also constitute an independent crime upon which criminal action could be instituted.' (P. 297, fn. 13, 42 Cal.Rptr. pp. 209--210, 398 P.2d pp. 401--402; emphasis partially added.)

However, in Victor the defendant opposed the C.R.C. proceedings which were initiated by the district attorney during defendant's incarceration in jail. Here, appellant, as we have pointed out, requested the procedures to be instituted. Assuming, arguendo, that, under Victor, the C.R.C. commitment was erroneous, it is clear that appellant invited, and is therefore estopped from taking advantage of, any such error (Abbott v. Cavalli (1931) 114 Cal.App. 379, 383, 300 P. 67; cf. In re Griffin (1967) 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625).

In addition, it appears to us that a valid argument was neither advanced nor considered in Victor. As pointed out earlier, Penal Code, section 1203.3, gives the court authority at any time during probation to revoke, modify or 'change its order of suspension of . . . execution of sentence.'

Part and parcel of the court's order suspending execution of sentence here was the granting of probation. When the court later Adjourned and criminal proceedings, such order in extricably involved a Change or Modification of the previous order suspending execution of sentence.

We conclude, therefore, that under the circumstances presented by the instant case the narcotic commitment of appellant tolled the probationary period. Consequently, the September 4, 1970 revocation by the trial court did occur during the term of probation within the meaning of Penal Code, section 1203.3.

Appellant's second contention is also jurisdictional, and is based upon Penal Code, section 1203.2a, which provides that where a defendant has been previously sentenced on one offense and the Execution of that sentence has been suspended, the court must issue its commitment on that offense within 30 days after the court receives 'notification' of defendant's prison confinement on another offense. ⁴

The statute provides two alternative methods by which the court may receive official notification of a defendant's prison confinement: (1) by the probation officer or (2) by receipt of a 'certificate' from the warden, superintendent or duly authorized representative of any prison in this state, 'showing that the defendant is confined in prison.'

Appellant does not contend that the court was ever informed by the probation officer of the 'confinement.' He claims, however, that the court did receive notification from two sources either of which satisfy section 1203.2a. We disagree.

First, appellant argues that, since both prison sentences were imposed by the same court, the court had constructive, if not actual, notice of his confinement. This argument begs the issue, since the statute provides the sole and exclusive means by which the court's jurisdiction may be defeated. The observation of this court (Div. One) in In re Brown (1971) 19 Cal.App.3d 659, 666, 97 Cal.Rptr. 71, 76, in requiring strict compliance with another aspect of section 1203.2a, is...