People v. Hall, Cr. 4825

• Decision Date: 29 December 1952
• Docket Number: Cr. 4825
• Citation: 251 P.2d 979,115 Cal.App.2d 144
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. HALL.

Page 979

251 P.2d 979

115 Cal.App.2d 144

PEOPLE v. HALL.

Cr. 4825.

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

Dec. 29, 1952.

Hearing Denied Jan. 22, 1953.

Edmund G. Brown, Atty. Gen., and Frank Richards, Deputy Atty. Gen., for appellant.

William Herbert Hall, Los Angeles, for respondent.

VALLEE, Justice.

The People appeal from an order made after judgment denying their motion to vacate and set aside an order placing defendant on probation and an order recalling the commitment of defendant to state prison.

The chronology of events in the court below was as follows:

November 17, 1949--defendant pleaded guilty to a violation of Penal Code section 288 and applied for probation.

December 13, 1949--probation was denied, defendant was sentenced to the state prison, and remanded to the custody of the sheriff to be delivered to the custody of the director of corrections of San Quentin.

December 21, 1949--a stay of execution of the sentence was granted to and including January 12, 1950.

December 23, 1949--defendant filed a notice of appeal from the judgment.

January 6, 1950--defendant filed a motion to set aside the judgment and his plea of guilty.

January 11, 1950--defendant filed a dismissal of his appeal from the judgment.

January 12, 1950--defendant's motion to set aside the judgment and his plea of guilty was denied.

January 17, 1950--the sheriff delivered defendant to the custody of the director of corrections at San Quentin.

January 20, 1950--defendant filed a notice of appeal from the order denying his motion to set aside the judgment and his plea of guilty.

January 20, 1950--defendant filed a notice of motion to fix a bond pending the appeal.

January 27, 1950--bond on appeal was fixed, a certificate of probable cause was issued, and it was ordered that the sheriff return defendant from the state prison to the Los Angeles county jail pending the determination of the appeal.

February 4, 1950--pursuant to said order, defendant was delivered to the custody of the sheriff.

February 7, 1950--defendant was released on the bail theretofore fixed.

December 1, 1950--the order denying defendant's motion to set aside the judgment and his plea of guilty was affirmed on appeal. People v. Hall, 100 Cal.App.2d 763, 224 P.2d 812.

December 20, 1950--defendant filed a motion for reconsideration of the order denying his application for probation, and the hearing thereof was continued to December 27, 1950.

December 27, 1950--defendant's motion for reconsideration of his application for probation was granted; sentence was suspended and he was placed on probation for a period of ten years, and, as a condition thereof, he was ordered to serve the first ten months in the county jail with good time allowed if earned; bail was exonerated, and defendant was remanded to the county jail.

January 8, 1951--the remittitur from the district court of appeal was filed with the clerk of the superior court.

July 18, 1951--a nunc pro tunc order was made recalling the commitment issued December 13, 1949, and the warden of the state prison was so notified.

November 6, 1951--the People filed a motion to set aside the order placing defendant on probation and the order recalling the commitment.

November 21, 1951--the defendant filed a motion that the court reconsider his application for probation on the ground that on December 27, 1950, the date he had been placed on probation, the remittitur from the district court of appeal had not been filed with the superior court; that it was filed on January 8, 1951.

December 13, 1951--the motion of the People filed November 6, 1951, and the motion of the defendant for reconsideration of his application for probation were denied.

December 14, 1951--the People filed a notice of appeal from the order denying the motion filed November 6, 1951.

The sole contention of the People is that the superior court was without jurisdiction to place the defendant on probation. The argument is that probation may not be granted after the execution of the sentence has begun. The attorney general does not raise any question with respect to the validity of any of the other orders which were made. Although the notice of appeal says the People appeal from the order recalling the commitment of defendant to the state prison, no point is made with respect to the validity of that order except as it is related to the order placing the defendant on probation.

At the time in question, section 1203 of the Penal Code ¹ in relevant part provided that at such time or times fixed by the court, the court must hear and determine an application for probation; and if the court shall determine that there are circumstances in mitigation of punishment prescribed by law, or that the ends of justice would be subserved by granting probation to the defendant, the court shall have power, in its discretion, to place the defendant on probation. ²

There is nothing in section 1203, as it read at the time in question, expressly limiting the power of the court to place a defendant on probation to the time before the execution of the sentence has begun. If such limitation exists, it arises by implication on the theory that jurisdiction of the trial court for all purposes ends when the execution of its sentence begins on a judgment of conviction.

Section 1243 in part provides: 'An appeal to the Supreme Court or to a District Court of Appeal from a judgment of conviction does not stay the execution of the judgment in any case unless the trial or appellate court shall so order.' Section 1245 provides: 'If before the granting of the certificate [staying execution of the judgment], the execution of the judgment has commenced, the further execution thereof is suspended, and upon service of a copy of such certificate the defendant must be restored, by the officer in whose custody he is, to his original custody.' Section 1265 provides that upon the going down of the remittitur from an appellate court to the court below, all orders necessary to carry the judgment into effect must be made by the court to which the remittitur is remitted.

Section 1272 provides: 'After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only. 2. As a matter of right, when the appeal is from a judgment imposing imprisonment in cases of misdemeanor. 3. As a matter of discretion in all other cases.' The discretion in granting bail after conviction is in the trial court in the first instance. In re Torres, 80 Cal.App.2d 579, 580, 182 P.2d 573. The fact that the defendant has been convicted of a felony, sentenced, and has appealed, does not deprive the trial court of jurisdiction to grant bail pending the appeal. Pen.Code, § 1291; People v. Perdue, 48 Cal. 552; People v. Cornell, 28 Cal.App. 654, 655-656, 153 P. 726.

An appeal may be taken by the defendant in a criminal action from any order made after judgment, affecting his substantial rights. Pen.Code, § 1237, subd. 3. An order denying a defendant's motion to set aside the judgment and his plea of guilty is such an order. People v. Shorts, 32 Cal.2d 502, 506-507, 197 P.2d 330.

People v. Durrant, 119 Cal. 54, 50 P. 1070, held that a certificate of probable cause may be issued upon an appeal by a defendant from an order made after judgment. On receipt of the remittitur from the reviewing court, the jurisdiction of the superior court is restored to it. In re Maguth, 103 Cal.App. 572, 574, 284 P. 940.

If the trial judge refuses or neglects to pass on the question whether there is probable cause for the appeal, or improperly denies a certificate to that effect, the defendant may make an application to a justice of the court to which the appeal is taken, even though he may have commenced serving his sentence. 8 Cal.Jur. 550, § 552.

In re Mayen, 49 Cal.App. 531, 193 P. 813, was a proceeding in habeas corpus in which the petitioner sought an order that he be taken from the custody of the warden of the state prison and delivered to the custody of the sheriff. He had been convicted of a felony, sentenced to the state prison, and had appealed from the judgment of conviction. Thereafter, the trial judge had issued a certificate of probable cause which he later revoked, and ordered that a commitment to the state prison issue. An application was made to the district court of appeal for an order staying execution of the judgment until such time as the record on appeal could be prepared and transmitted to that court and an application for a certificate of probable cause made to a justice thereof. The sheriff, in the meantime, had taken the petitioner to the state prison under the judgment and commitment of the superior court. Thereafter, the district court of appeal ordered that execution of the judgment be stayed until such time as the record on appeal from the judgment could be prepared and transmitted to that court and an application made to a justice thereof for a certificate of probable cause. In the course of its opinion in the habeas corpus proceeding, the court said, 49 Cal.App. at page 536, 193 P. at page 815: 'The effect of our order staying execution of the sentence was to make illegal petitioner's detention in the state prison during such time as the stay of execution may continue in force. A stay of execution of a judgment of conviction suspends the judgment and arrests all proceedings thereon during the continuance of the stay. The effect of the suspension of the judgment is that, during the time of the judgment's suspension, the defendant cannot be treated as a convict undergoing punishment for his crime, nor as one who is subject to imprisonment in the state prison--even for the purpose of detention. * * * Therefore, pending our stay of execution of the judgment of conviction, petitioner should be remanded to and remain in the custody of the...