People v. DeWaele

• Decision Date: 06 February 1964
• Docket Number: Cr. 8837
• Citation: 36 Cal.Rptr. 825,224 Cal.App.2d 512
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles Frederick DeWAELE, Defendant and Appellant.

Page 825

36 Cal.Rptr. 825

224 Cal.App.2d 512

The PEOPLE, Plaintiff and Respondent, v. Charles Frederick DeWAELE, Defendant and Appellant.

Cr. 8837.

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

Feb. 6, 1964.

Charles F. DeWaele, in pro. per.

Stanley Mosk, Atty. Gen., and William E. James, Asst. Atty. Gen., for plaintiff and respondent.

FILES, Justice.

This appeal requires us to consider the right to counsel at a hearing where a defendant, whose probation before judgment has been revoked, is granted further probation conditioned upon spending additional time in the county jail. Our conclusion is that the latter order is appealable, and should be reversed because defendant's counsel was not present.

On April 23, 1958, an information was filed containing eight counts, each charging defendant with issuing a check without sufficient funds in violation of Penal Code, section 476a. The information charged a prior conviction for violation of the same section. Defendant pleaded guilty to Count I and admitted the prior conviction. On May 19, 1958, the court, without pronouncing judgment, suspended proceedings and placed defendant upon probation for five years. The other seven counts were dismissed. As a condition of probation, defendant was required to spend six months in the county jail. Defendant was represented by the public defender, who appeared for him when he pleaded and when the order granting probation was made. On October 14, 1958, the terms of probation were modified and defendant was ordered to make restitution in a manner and amount prescribed by the probation officer.

No appeal was taken from either of those orders.

On November 2, 1962, an order was made revoking probation and a bench warrant was issued. Neither defendant nor his counsel was present on that occasion. On November 16, 1962, defendant was brought before the court. Present were a deputy district attorney, a deputy probation officer, and defendant without counsel. The entire reporter's transcript of what occurred then is as follows: 'THE COURT: Charles Frederick DeWaele. Charles Frederick DeWaele, is that your true name? THE DEFENDANT: Yes, sir. THE COURT: The defendant will be found to be in violation of probation. He will be restored to probation on the original terms and conditions, except that it will be modified and extended to a period three years from this date--no--strike that. It will be modified and extended a period of one year from this date, and the defendant will be remanded and the balance of the period of probation will--the defendant will remain in custody, good time allowed, if earned, and the fine will be remitted. That means that the balance of the probation, one year, will be spent in jail.'

On November 26, 1962, defendant filed his notice of appeal from 'the judgment of conviction pronounced and rendered on November 16, 1962.'

This notice is adequate to initiate an appeal from the order granting probation. Penal Code, section 1237, provides:

'An appeal may be taken by the defendant:

'1. From a final judgment of conviction; a sentence or an order granting probation shall be deemed to be a final judgment within the meaning of this section * * *.'

Were the order of November 16, 1962, deemed an order modifying probation, an appeal would be authorized under Penal Code, section 1237, subdivision 3, as an 'order made after final judgment' (In re Bine, 47 Cal.2d 814, 817, 306 [224 Cal.App.2d 515] P.2d 445); but our interpretation of the record indicates that the appeal in this case is proper under subdivision 1.

Defendant asserts in his brief that no reason was given for the revocation of his probation. The report of the probation officer which doubtless brought on the revocation proceedings is not in the record on appeal. The Attorney General suggests that an examination of the superior court file will reveal ample basis for the order of the court. Because of the error demonstrated by the present record, it is unnecessary to consider the grounds upon which the superior court acted.

It is well established that it is unnecessary to hold a hearing in order to revoke probation. Although probation may not be revoked arbitrarily (In re Bine, 47 Cal.2d 814, 817, 306 P.2d 445), the court may act upon the report of the probation officer and in defendant's absence. The constitutional right to counsel in 'criminal prosecutions' is not applicable then because a probation proceeding is not a part of a 'prosecution.' (In re Levi, 39 Cal.2d 41, 44, 244 P.2d 403; In re Davis, 37 Cal.2d 872, 236 P.2d 579; In re Dearo, 96 Cal.App.2d 141, 214 P.2d 585.) Where probation is granted before the pronouncement of judgment and later is ordered revoked, defendant has the opportunity to challenge the regularity of the order when he is subsequently brought before the court and arraigned for judgment. (Pen.Code, § 1203.2.) At the time of the arraignment for judgment after revocation of probation, defendant is entitled to counsel as a constitutional right. (In re Turrieta, 54 Cal.2d 816, 8 Cal.Rptr. 737, 356 P.2d 681; In re Levi, supra.)

In the present case, when defendant was brought before the court after revocation of his probation, the formalities of an arraignment for judgment (Pen.Code, § 1200) were not observed, doubtless because the court had no intention of pronouncing a judgment. Yet the defendant's legal position as he stood before the court on November 16, 1962, was simply that of a party who had pleaded guilty and was awaiting sentence. The order made four years earlier suspending...