People v. Ham

• Decision Date: 02 January 1975
• Docket Number: Cr. 25523
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Eugene HAM, Defendant and Appellant.

Page 591

118 Cal.Rptr. 591

44 Cal.App.3d 288

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Eugene HAM, Defendant and Appellant.

Cr. 25523.

Court of Appeal, Second District, Division 5, California.

Jan. 2, 1975.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeals, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Theodora Berger, Deputy Atty. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

Defendant Jack Eugene Ham appeals from a judgment revoking his probation and sentencing him to prison.

FACTS

In 1970, defendant was charged, in a three-count information, with possession of LSD (Count I), a felony, and two misdemeanors, being under the influence of narcotics (Count II) and resisting a police officer (Count III).

On March 15, 1971, defendant appeared in court to plead guilty. Part of the colloquy between the prosecutor and defendant which preceded his plea was as follows:

'(Prosecutor): Mr. Ham, as charged the violation of Section 11910 is a felony.

Earlier today at your counsel's request there was a conference in chambers concerning this case. Some facts concerning the case and some facts concerning your background were made known to the judge. The judge indicated that he would be inclined to make this a misdemeanor by sentence. What that means is that the maximum time possible that you could spend in custody is one year in the county jail. The Court besides saying it would make this a misdemeanor made no other promises or representations. It is possible for you to serve up to one year in the county jail or any time less. It is possible you might be put on probation or receive a fine or a combination of the three. Do you understand that?

'THE DEFENDANT: Yes.

'(Prosecutor): Has anyone promised you anything else other than the dismissal of Counts II and III in order to get you to plead guilty?

'THE DEFENDANT: No.'

Defendant pleaded guilty to Count I 'a violation of Section 11910 of the Health and Safety Code, a felony, . . .'

Sentencing, after a probation department referral, was scheduled for April 6, 1971. On that day Counts II and III were dismissed; proceedings were suspended and defendant was placed on probation for three years on condition that he serve 60 days in jail. The offense was not declared to be a misdemeanor.

On February 8, 1974, defendant, drunk, was driving across all lanes on the Pomona Freeway. He was pursued by a California Highway Patrol officer, and, eventually, ended up on the center divider of the freeway after having driven for a while in the wrong direction. The officer arrested defendant, who cursed, struck, kicked and spit at the officer several times. Defendant was, apparently, charged with drunk driving and assaulting a police officer. This evidence was presented at a probation revocation hearing, discussed below, in May.

On March 28, 1974, defendant appeared in court for a probation-violation hearing. The public defender stated that defendant's trial on the described offenses was scheduled for May 1 and requested that the hearing be continued 'to a date past May 1 to await the outcome of those matters, . . .' The record of the March 28th hearing also indicates that at the time defense counsel asked for an evidentiary hearing after May 1, he was fully aware that the three-year probationary term was about to expire in early April. The court continued the evidentiary hearing but made clear that defendant would be detained until that time. The court had before it the probation officer's report, indicating '11 previous episodes of assault . . ..' An evidentiary hearing was then set for April 18.

The hearing was continued several times on defendant's request. Then defendant disqualified the judge who had presided at the March hearing, and, on May 15, the matter was transferred to another judge, and again continued until May 29, 1974, when an evidentiary hearing was held. The arresting officer and defendant's probation officer testified.

Defendant was found to be in violation of probation. Probation was revoked. Defendant was sentenced to prison with credit for 63 days served in jail.

Additional facts will be added in the discussion.

DISCUSSION

Ineffectiveness of Counsel

Defendant contends that trial counsel in 1971 was ineffective or not reasonably competent for failing to make a motion to withdraw defendant's guilty plea, because the court breached its promise to treat the offense as a misdemeanor.

The contention has no merit. We do not have a reporter's transcript of the April 6, 1971, proceedings. ¹ It is immaterial whether the colloquy of March 28 amounted to a promise. We do know that the crime to which defendant pleaded was not reduced to a misdemeanor. In support of the court's action we must presume that the procedures mandated by section 1192.5 of the Penal Code were followed, that defendant was given an opportunity to withdraw his plea and declined to do so. (See People v. Johnson, 10 Cal.3d 868, 872--873, 112 Cal.Rptr. 556, 519 P.2d 604.) This presumption is strongly fortified by certain portions of the April 6, 1971 proceedings which were read into the record by the court on the occasion of defendant's evidentiary hearing on May 29, 1974. What appears is that at the time of the sentence on April 6, 1971 the court stated:

'It means that if you mess up again, you come back before me, I can sentence you to the Department of Corrections for the time prescribed by law. . . . If . . . the probation officer finds you are in violation of the terms of probation . . . then I can just say, 'All right, young man, I gave you your shot. You goofed, State Penitentiary."

Whether or not defendant's offense was classified as a misdemeanor, the deal he obtained--probation with proceedings suspended--was not one which an 'effective' attorney would have recommended rejecting in favor of a trial. Defendant's background, starting with his activities as a juvenile, involved resisting arrest, battery, public drunk hit-and-run, indecent exposure, resisting arrest, battery, possession of marijuana, drunk driving, and about another dozen items that, on the incomplete record before us, may or may not have resulted in convictions. ²

No ineffectiveness of counsel appears.

Abuse of Discretion

Defendant contends that the court abused its discretion in sentencing defendant to prison in 1974, because of the 'plea bargain' made in 1971. That point is resolved by our previous discussion.

Jurisdiction to Sentence

Defendant, as noted, was placed on three years' probation on April 6, 1971; he appeared in court on this violation on March 28, 1974, when the court detained defendant pending an evidentiary hearing, and was sentenced to prison on May 29, 1974.

Defendant's contention that the court 'lost' jurisdiction to revoke probation and sentence defendant after April 6, 1974, is without merit. Defendant recognizes that if probation is Revoked during the probationary period, the trial court retains jurisdiction to sentence the defendant after the expiration of that term. (E.g., Pen.Code, § 1203.3; People v. Williams, 24 Cal.2d 848, 850--851, 151 P.2d 244; see In re Griffin, 67 Cal.2d 343, 346, 62 Cal.Rptr. 1, 431 P.2d 625, and cases collected.)

He contends, however, that under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 and People v. Vickers, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313, the trial court's action of March 28 was inadequate to sustain the court's jurisdiction to revoke probation formally on May 29. The contention is without merit.

Before Morrissey and Vickers, defendant's probation would have been briskly and permanently revoked on March 28, when he first appeared in court. Morrissey, as applied to probation revocation, mandated more elaborate proceeding: first perhaps, a preliminary determination of probable cause to revoke probation, followed by a full evidentiary hearing. (People v. Vickers, Supra, 8 Cal.3d 451, 459 and fn. 8, 105 Cal.Rptr. 305, 503 P.2d 1313.) ³ The panoply of rights conferred on a defendant charged with a probation violation may well result, as in this case, in delays and extensions before final disposition of the matter.

However, nothing in Morrissey or Vickers or any case of which we are aware suggests that the new rights afforded a defendant charged with a probation violation were intended to have jurisdictional ramifications. To the contrary, Vickers anticipates this very problem: In discussing the problem of the absconding parolee, who, should 'he remain at liberty without proceedings had against him . . . could conceivably complete his term and the Authority would lose jurisdiction in the matter' noted: 'We do not foreclose the possibility that summary revocations order than when the defendant has absconded, particularly if necessary to preserve the court's jurisdiction, will comport with due process requirements.' (People v. Vickers, Supra, 8 Cal.3d 451, 460, and fn. 10, 105 Cal.Rptr. 305, 312, 503 P.2d 1313, 1320.) ⁴

Whatever the label placed on the March...