People v. McClean

Decision Date26 January 1955
Docket NumberCr. 5259
Citation279 P.2d 87,130 Cal.App.2d 439
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. M. W. McLEAN, Jr., and Bertha A. Germon, Defendants and Appellants.

Jesse A. Hamilton, San Monica, for appellants.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Robert Wheeler, Dep. Dist. Attys., Los Angeles, for respondent.

VALL VALLEE, Justice.

Defendants appeal from orders revoking probation and from judgments thereafter entered sentencing McClean to state prison and Bertha Germon to the institution for women. The orders revoking probation made before rendition of the judgments are not appealable and the appeals therefrom will be dismissed. Those orders are reviewable on the appeals from the judgments. People v. Robinson, 43 Cal.2d 132, 271 P.2d 865.

In March 1951 defendants pleaded guilty to one count of grand theft and to two counts of forgery. The grand theft charge was that defendants had feloniously taken $27,564.11, the property of Flintridge Heights Mutual Water Company, Inc., a corporation. One of the forgery charges was that defendants had forged a grant deed and had uttered the same with intent to cheat and defraud Benedict Heights, Inc., a corporation, and its shareholders and creditors. The other forgery charge was that defendants had forged a grant deed and had uttered the same with intent to cheat and defraud Flintridge Heights, Inc., a corporation, and its shareholders and creditors. The prosecution arose out of the activities of defendants in the operation of three corporations--Benedict Heights, Inc., Flintridge Heights, Inc., and Flintridge Heights Mutual Water Company, Inc.--which they apparently controlled. Prior to these proceedings Flintridge Heights, Inc., had been adjudicated bankrupt.

On May 2, 1951 proceedings were suspended and defendants were granted probation for a period of 6 years on condition that each defendant must report as required and must cooperate with the probation officer and anyone designated by him in some proposition to work out the situation to the satisfaction of all persons concerned. On granting probation, the judge said to defendants:

'I think that the threat of jail should be held over their heads, and that is what the court tends [sic] to do. * * * Now, that doesn't mean that that is all there is to this thing, that you are going to go out of here scotfree. It means that you are going to have to work this thing out together; give these people value received or you are going to be brought in here as probation violators and possibly be sent to the penitentiary. In other words, you either do or you don't; if you do we can perhaps clean this matter up; if you don't it means Tehachapi for Mrs. Germon and San Question for you, Mr. McClean. You understand that, do you? * * * I am going to give you this time to try to work this out. We will see what your intentions are. It won't take 6 years to find out, and I am sure that if the probation officer comes in to court in the next 6 months with the report that you are not cooperating that you will probably serve time.'

On October 31, 1951, defendants being present, the order granting probation was modified as to each defendant as follows:

'The order requiring restitution is modified in this respect as to each defendant: If and when the matter is reduced to civil judgment, that judgment shall become part of the terms of probation in this case. The Probation Officer is to follow through and determine whether reduced to judgment; if so, the Probation Officer is to report back to the Court for further instructions as to the payment of judgment.'

On December 3, 1953, defendants being present, the probation officer reported to the court that the matter had been reduced to judgment and that there was now a judgment in the amount of $29,700 against defendants jointly and severally.

On January 28, 1954 the terms of probation were modified as follows:

'Payment of $56,700 in civil judgment is made part of the terms and conditions of probation and each defendant is ordered to pay it jointly and severally. It is further ordered that they pay $30,000 of said amount within sixty days or failing in this, that defendants have a Certified Public Accountant issue a complete financial statement reflecting their income and receipts since November 1947, and that this include any real or personal property which they may have sold or conveyed or disposed of in any way to other people.'

At that time the court stated to defendants:

'I have read Judge Carter's opinion. 1 I am thoroughly in accord with some of the conclusions if not all of the conclusions that he has made. * * * He states that there is 'A sorry tale of fraud, reckless violation of law and utter disregard of the rights of creditors.

'[']Funds of the corporation [Flintridge Heights, Inc.] were handled by various defendants as if they were the personal property of the defendants. The evidence shows the Court finds a conspiracy between the four remaining defendants' including these two before this court, 'to defraud the corporation and its creditors. Escrows were robbed before closing and laws recklessly violated'----

'I note your comment that the only reason they are unable to protect themselves or make any showing is because of their failure to have any books. That follows right along with the pattern of a person who has fraud in his heart. He doesn't keep books for the reason that he doesn't want the books to disclose his business. I am satisfied that although Mrs. Germon may make the claim that the only time she ever told a lie was when she pleaded guilty, that that was perhaps, the only time she has told the truth.'

On June 24, 1954, defendants being present, the matter came on for hearing on the report of the probation officer as to the progress of probation. The court stated:

'The Court is concerned with the payment of $56,700 civil judgment and a $30,000 amount within sixty days from January 2nd, 1954 or January 28th; it is blurred here and I can't make out which it is. That has not been made and no effort has been made to pay it. * * *

'[W]e have the statement before the Court here that the defendants are in possession of $120,000.00 or assets worth that. * * *

'The date of this offense is December 1947. That is seven years ago. The complaint was not filed until February of 1951. The plea of guilty was entered on May 2, 1951 to one count of grand theft and two counts of forgery, and I think that any fair minded person will agree that this Court has been more than reasonable in giving these defendants an opportunity to work it out. * * * I think that any fair minded person all [sic] also agree that these defendants have not cooperated one iota with the court in the efforts that have been made to straighten out this situation.

'In May 1951 probation was granted. On October 31st, 1951, certain other terms and conditions were imposed and then the matter has been on the calendar from time to time since October 31st of 1951, until the Court has just come to the definite conclusion that there is no honest effort on the part of either one of these defendants to comply with the orders of this court...

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13 cases
  • People v. Williams
    • United States
    • California Court of Appeals Court of Appeals
    • December 21, 1966
    ...by the provisions of section 1203.1 of the Penal Code, the salient portions of which are set forth in People v. McClean (1955) 130 Cal.App.2d 439 at page 444, 279 P.2d 87 at page 91, as follows: 'The court, in the order granting probation, may impose 'such terms and conditions as it shall d......
  • People v. Cervantes
    • United States
    • California Court of Appeals Court of Appeals
    • March 19, 1984
    ...expressly found that the defendant had had a fair hearing below as to the amount of restitution. (Ibid.) Finally, People v. McClean (1955) 130 Cal.App.2d 439, 279 P.2d 87, also relied upon by the court in Williams, does not stand for the proposition that the probation officer may properly d......
  • Robert M., In re
    • United States
    • California Court of Appeals Court of Appeals
    • January 17, 1985
    ...revoke probation automatically...." (Id., 461 U.S. at p. ----, 103 S.Ct. at p. 2071, 76 L.Ed.2d, at p. 230; cf. People v. McClean (1955) 130 Cal.App.2d 439, 444-445, 279 P.2d 87.) Several courts have indicated it would be unjust to revoke the probation of a person addicted to alcohol for vi......
  • State v. Stalheim
    • United States
    • Oregon Court of Appeals
    • November 24, 1975
    ...where the victim had lost a leg, even though a civil action for damages was pending against the defendant.In People v. McClean, 130 Cal.App.2d 439, 279 P.2d 87 (1955), the condition was that the defendants give 'value received' to the persons defrauded. This condition was subsequently modif......
  • Request a trial to view additional results

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