People v. Miller

• Decision Date: 02 November 1960
• Docket Number: Cr. 3797
• Citation: 186 Cal.App.2d 34,8 Cal.Rptr. 578
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ella Mae MILLER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 578

8 Cal.Rptr. 578

186 Cal.App.2d 34

PEOPLE of the State of California, Plaintiff and Respondent, v. Ella Mae MILLER, Defendant and Appellant.

Cr. 3797.

District Court of Appeal, First District, Division 2, California.

Nov. 2, 1960.

Ruth Jacobs, San Francisco, for appellant.

Stanley Mosk, Atty. Gen. of California, Miriam E. Wolfe, Deputy Atty. Gen., for respondent.

SHOEMAKER, Justice.

This is an appeal by defendant Ella Mae Miller from the judgment of the trial court after remand by the Supreme Court in the case of People v. Wade and Miller, 53 Cal.2d 322, 1 Cal.Rptr. 683. Upon her original trial defendant Ella Mae Miller pleaded guilty to attempted robbery in the first degree and murder in the first degree. The cause was referred to the probation officer for his action, who filed his report, and the matter then came on for pronouncement of judgment and consideration of the motion for probation. The court denied probation and sentenced defendant to the State prison for life. Defendant appealed and the Supreme Court reversed the judgment and stated at page 339 of 53 Cal.2d, at page 695 of 1 Cal.Rptr: '[A]s to defendant Miller, the order denying a new trial is affirmed. Since the record discloses that the trial court, without considering the merits of the application for probation, erroneously determined that she was not eligible for probation, the judgment as to her is reversed, and the cause remanded for further proceedings in accordance with law, and with specific directions to the trial court to entertain the application for probation and grant or deny the same as may appear proper under all the circumstances.

At the hearing on the remand held February 17, 1960, the trial court again denied defendant's motion for probation and pronounced judgment sentencing her to imprisonment in the State prison for life.

Defendant's first contention is that the trial court abused its discretion in refusing her probation without first determining whether the statutory requirements for probation were present; that is, whether or not she had been armed with a deadly weapon at the time of the commission of the felony. This would have been an idle act on the part of the trial court for the matter had been determined by the Supreme Court when it stated that defendant was eligible for probation and remanded the case for consideration of probation. People v. Wade, supra, 53 Cal.2d at page 338, 1 Cal.Rptr. at page 694. The proceedings before the trial court show clearly that the judge thereof was well aware that defendant was eligible for probation if found worthy.

Defendant next contends that the trial court by denying probation exercised its discretion in an arbitrary manner and thereby denied her due process of law under the Constitutions of the State of California and the United States. We remind the defendant that probation is not an absolute right to which a convicted person is entitled, but it is an act of grace and clemency on the part of the court (People v. Jackson, 1948, 89 Cal.App.2d 181, 200 P.2d 204 and that the privilege does not have its basis in either the Constitution of California or of the United States but exists by reason of statutes creating it. The defendant points to the trial judge's statement that the Supreme Court had been mistaken in assuming she had not read the report and asserts that, being in such a frame of mind, the judge could not fairly...