People v. Mason

• Decision Date: 26 August 1960
• Docket Number: Cr. 6747
• Citation: 184 Cal.App.2d 182,7 Cal.Rptr. 525
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Monte G. MASON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 525

7 Cal.Rptr. 525

184 Cal.App.2d 182

PEOPLE of the State of California, Plaintiff and Respondent, v. Monte G. MASON, Defendant and Appellant.

Cr. 6747.

District Court of Appeal, Second District, Division 1, California.

Aug. 26, 1960.

Rehearing Denied Sept. 12, 1960.

Hearing Denied Oct. 19, 1960.

Russell E. Parsons, Beverly Hills, and Edward I. Gritz, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from the judgment, an attempted appeal from an order revoking probation filed on February 25, 1959 and an attempted appeal from an order denying a motion to vacate and set aside a judgment entered on February 24, 1959.

In an information filed in Los Angeles County on or about April 28, 1947 (Case No. 112,872), Mason was charged in two counts (I and VIII) with committing grand theft of the sums of $1,500 and $5,000 respectively, and in seven counts with violating the corporate securities act in making unpermitted sales of stock to individuals for profit.

In a trial which started before Judge Landreth on September 5, 1947 the defendant was found guilty as charged with the exception of Count II which had to do with an alleged violation of the corporate securities act.

The defendant made an application for probation and the hearing on the application and the pronouncement of judgment and sentence was set for September 26, 1947. The probation officer made an investigation and report and recommended that the application for probation be denied.

The probation officer commented in his report as follows: '* * * he appears to have been playing on the fringes of law violation over a period of several years. It is without a doubt that he is a capable man, has a good personality, is in all probability a hard worker and is possessed of many other favorable traits and abilities, but it appears that he has been living far beyond his means and has been doing so by securing and receiving money from people without giving value received. The defendant expresses no remorse for his activities and it appears that he has no means of making restitution.'

Probation was denied and Judge Landreth, who heard the case sentenced the defendant to the state prison on November 7, 1947.

The judgment was appealed to this Court and was affirmed in People v. Mason, 86 Cal.App.2d 445, 195 P.2d 60 on June 29, 1948.

The defendant reapplied for probation in the trial court after the affirmance of the judgment. Judge Ambrose of the trial court permitted the application to be made and the hearing was set for September 28, 1948. In the report of the probation officer at that time it is set forth that the defendant had '* * * presented a written statement attached hereto in which he has covered some of the points covered in the above paragraph and in addition states, 'My brother-in-law has offered to loan me from $500 to $1000 per month to pay on these accounts until fully paid. I have explained the situation to him and he is willing to help, starting immediately.''

That report further stated '* * * it appears to the Probation Officer that he has not satisfactorily explained sufficient income from all sources to have taken care of the financial obligations that he has apparently met recently and for the past year. It is true that he has now presented a plan of restitution but only through intangible and imaginary income possible if all of his dreams come true. The defendant now expresses some remorse over his former activities but in the next breath justifies his actions. The greatest reason for considering probation in this matter would be for a matter of restitution and this possibility is so remote that it almost seems improbable if not impossible.' The probation officer recommended that probation be denied.

At the hearing on January 4, 1949 before Judge Ambrose the Judge ordered that the sentence to the state prison pronounced on November 7, 1947 be suspended and the defendant was granted probation for a period of ten years under the conditions, among others, that '* * * Defendant must make restitution for all claims as directed by the Probation Department in the sum of not less than $300. per month. Any default of this sum is to be reported to the Court by the Probation Department. The defendant must follow the usual conditions of the Probation Department.'

In a supplemental report (dictated on December 11, 1958) filed on December 15, 1958 the probation officer set forth that the court had theretofore been advised (i. e., on July 1, 1958) that the defendant had been indicted in San Luis Obispo County for violating the corporate securities act and that he was at that time on trial in the Superior Court in Los Angeles County (Case No. 197,622) for similar offenses. The report further set forth that the probationary period would expire January 3, 1959; that the defendant had continued to pay $300 a month toward a total restitution of $62,137.33 and then owed about $27,000. It was recommended by the probation officer that probation be revoked and the hearing on the violation be continued to February 17, 1959 for further report.

In another supplemental report (dictated on December 15, 1958), filed on December 16, 1958 the probation officer advised the court that the jury had brought in a verdict of guilty on December 14, 1958 (Case No. 197,622) on the charges set forth in the information filed in Los Angeles County, namely grand theft of $15,000 and seven counts of violating the corporate securities act and a conspiracy charge. The probation officer recommended that 'defendant be found in violation of probation, that probation be revoked and sentence imposed.' On December 16, 1958 the defendant was present in court with his counsel and Judge Ambrose revoked the probation. Hearing on the violation was continued to January 20, 1959 and ultimately to February 24, 1959. On February 24, 1959 Judge Walker ordered that 'probation is revoked' and sentenced the defendant to the state prison on all counts in Case No. 112,872, the sentences to run concurrently with the sentences imposed in Case No. 197,622.

On February 25, 1959 the defendant filed a notice of appeal from the judgment (of February 24, 1959) of conviction and 'from the Order revoking probation.'

On May 1, 1959 the appellant moved the court to set aside the order and judgment of February 24, 1959 and further made a motion for a writ of habeas corpus. Each such motion was denied.

Appellant has attempted to appeal from the order of May 1, 1959 denying the motion to set aside and vacate the judgment.

Appellant now contends: (1) The court was without jurisdiction to order unlimited restitution to be paid through the probation officer at not less than $300 per month as a condition of probation; (2) The court exceeded its jurisdiction by revoking probation and ordering the suspended sentence in full force and effect after the expiration of the full term of the judgment and sentence originally pronounced; (3) The court erred in denying the defendant's motion made after judgment to set aside the void order revoking probation and ordering the original judgment and sentence into full force and effect.

The appellant asserts that the order of probation was lacking in due process for the reason that the probation officer and not the court set the amount which the defendant was to pay to his victims. Defendant asserts that this Court should order the probation department to return to him substantially all of the sums which he has paid in to the probation department for restitution to his victims. Even if the condition to make restitution and to pay not less than $300 per month on such accounts was void (and we do not think that it was so void) it would not necessarily mean that the entire order of probation was void. Conditions not authorized by law are severable from and do not affect the valid conditions of the order. People v. Ramos, 80 Cal.App. 528, 251 P. 941.

The condition imposed in this case was obviously satisfactory to the defendant until the time of his conviction in the proceedings in Case No. 197,622. He never complained of the order to make the payments and he did make the payments as indicated which he himself in effect proposed to the end that he would not have to go to the state prison as the court had theretofore ordered. Furthermore, the trial court, during the time of probation, upon a proper showing, is authorized to modify the order granting probation. Had the defendant been of the mind that the payments he was making were not entirely correct he should have made a showing during the ten-year period to that effect. His silence and the making of the payments would indicate that in his opinion the order was proper and that he was satisfied. The order of probation should be considered not by itself but as a part of the entire record. People v. Marin, 147 Cal.App.2d 625, 627, 305 P.2d 659. At the time the court heard the defendant's motion on re-application for probation there were on file reports of the probation officers which indicated that various persons who had been swindled by the defendant had claims in excess of $62,700 and that defendant had indicated he could secure from relatives loans of $500 to $1,000 per month to apply on the accounts until the same were paid. We presume that the court had in mind the claims involved and set a minimum amount to be paid each month toward restitution. There is a presumption that official duty has been regularly performed and that the proceedings have been regular. People v. Wilkins, 169 Cal.App.2d 27, 30, 336 [184 Cal.App.2d 188] P.2d 540; Code of Civil Procedure Section 1963(15). It has been held that cases involving the corporate securities act are proper ones for restitution. People v. Sidwell, 27 Cal.2d 121, 129-130, 162 P.2d 913; People v. Lippner, 219 Cal. 395, 397-400, 26 P.2d 457.

In In re Martin, 82 Cal.App.2d 16,...