People v. Municipal Court of Oxnard-Port Hueneme Judicial Dist., Ventura County

• Decision Date: 13 November 1956
• Docket Number: OXNARD-PORT
• Citation: 145 Cal.App.2d 767,303 P.2d 375
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. MUNICIPAL COURT OFHUENEME JUDICIAL DISTRICT, VENTURA COUNTY, California, Respondent. Civ. 21974.

Page 375

303 P.2d 375

145 Cal.App.2d 767

PEOPLE of the State of California, Petitioner, v. MUNICIPAL COURT OF OXNARD-PORT HUENEME JUDICIAL DISTRICT, VENTURA COUNTY, California, Respondent.

Civ. 21974.

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

Nov. 13, 1956.

Hearing Denied Jan. 8, 1957.

Edmund G. Brown, Atty. Gen., William E. James, Dep. Atty. Gen., Roy A. Gustafson, Dist. Atty., Ventura County, Ventura, for petitioner.

FOURT, Justice.

The petitioner seeks a wirt of mandate to direct and compel the respondent, the Municipal Court of Oxnard-Port Hueneme Judicial District, Ventura County, to:

'1. Direct the Chief of Police at the police department in the City of Oxnard, State of California, to take and preserve the fingerprints of defendant Albino Ramos Lozano.

'2. Require that the defendant report either to the court or to the probation officer at such times during the period of probation as specified by the court.

'3. Furnish defendant with probation papers stating:

a. the length of probation.

b. the terms and conditions of probation.

c. the person to whom, and the times at which, defendant is to report during the probationary period.

d. the right of defendant, upon completion of probation, to have the conviction set aside and the complaint dismissed.'

The facts are substantially as follows: Albino Ramos Lozano was, on August 1, 1956, convicted in the respondent court of the crime of violation of section 647, subdivision 11 of the Penal Code (common drunk). On the same date, at the time of pronouncement of judgment, the court said, 'Sixty days in the Oxnard City Jail, all of which sentence is suspended.' The judgment and order were entered in the docket. The petitioner's attorney, the District Attorney of Ventura County, thereupon moved the court to direct the taking of the defendant's fingerprints, to require that the defendant report either to the court or the probation officer, and to furnish the defendant with probation papers, all as heretofore set forth. The motion was denied.

Reduced to simple terms, the question is whether the court, when granting summary probation in misdemeanor cases, has the duty, and should be compelled by writ of mandate to carry out such duty, to direct the fingerprints of the defendant to be taken and preserved, to require that the defendant report either to the court or the probation officer during the period of probation at such times as the court may specify, and to furnish the defendant with probation papers setting forth the length, terms and conditions of probation.

The pertinent parts of Penal Code sections 1203, 1203.1, 1203a and 1203b are set forth in the footnote herein. ¹

Section 1203b was adopted in 1941. Prior to that time, under the provisions of section 1203 of the Penal Code, a court with jurisdiction to grant probation could deny probation summarily, but it could not grant it without a prior reference to, and a report from a probation officer. The 1941 legislature changed this procedure in misdemeanor cases. The section was adopted as an urgency measure and the following reasons were assigned for the enactment of the section. Stats.1941, Chap. 24, page 445.

'At the present time when a defendant in a criminal case in an inferior court seeks probation, the law requires that in every case his application be referred to the probation officer for investigation and report, notwithstanding the fact that in view of all the circumstances and evidence in many cases the court may already be satisfied that the granting of probation is justified. Under the present law until the probation officer's report is made to the court the defendant is frequently held in custody, in some cases for many days. This procedure has resulted in unnecessarily delaying the action of the courts, in unnecessary confinement of a defendant and in great and unnecessary expense in connection with investigations by the probation officer. It is necessary that the congestion now existing be relieved immediately in order that such unnecessary delays be avoided. It is therefore necessary that this act take effect immediately.' St.1941, p. 445, § 2.

In 1951, the legislature amended section 1203b by adding that part which follows the semi-colon, and is underscored in the footnote herein. Thus, the legislature created two methods or plans of granting probation. Prior to the amendments there was no distinction between the two.

An order suspending sentence is nothing more nor less than the granting of probation. People v. Cravens, 115 Cal.App.2d 201, 251 P.2d 717; United States Fidelity & Guaranty Co. v. Justice Court, 99 Cal.App.2d 683, 222 P.2d 292; Oster v. Municipal Court, 45 Cal.2d 134, 287 P.2d 755; People v. Williams, 93 Cal.App.2d 777, 209 P.2d 949; People v. Sidwell, 27 Cal.2d 121, 162 P.2d 913; In re Clark, 70 Cal.App. 643, 234 P. 109. An order suspending sentence is in legal effect 'the equivalent of a formal order placing the defendant on probation.' In re Herron, 217 Cal. 400, 404, 19 P.2d 4, 6.

The judge of a court may ordinarily do one of two things at the time a defendant appears for the pronouncement of judgment. The defendant can be sentenced, People v. Williams, supra, or, he can be granted probation (unless barred by statute). See footnote, section 1203, Penal Code.

The purpose of probation generally is appropriately set forth in People v. Johnson, 134 Cal.App.2d 140, at pages 143-144, 285 P.2d 74, at page 76: 'The granting of probation, aside from being an act of clemency extended to one who has committed a crime, is also in substance and effect a bargain made by the People, through their legislature and courts, with the malefactor. The Penal Code, sections 1203 et seq., dealing with the subject of probation, provide in effect that in granting probation the People of the State, speaking through their courts, may say to one who has committed a crime, 'If you will comply with these requirements you shall be entitled to this reward.' The purpose and hope are, of course, that through this act of clemancy, the probationer may become reinstated as a law abiding member of society. Removal of the blemish of a criminal record is the reward held out through the provisions of Penal Code, section 1203.4, as an additional inducement. The obvious purpose is to secure law compliance through an attempt at helpful cooperation rather than by coercion or punishment. The law does not require positive proof of total and permanent reformation or rehabilitation as a condition to surrender of the right to impose judgment and sentence, for there could be no such proof. Neither People v. Majado, 22 Cal.App.2d 323, 70 P.2d 1015, nor In re Phillips, 17 Cal.2d 55, 109 P.2d 344, 132 A.L.R. 644, cases cited by respondent, lays down any such requirement. The theory seems to be that if one with a reasonably satisfactory background commits a crime, the experience of apprehension and processing through court, together with the restrictions imposed through probation upon unlawful or intemperate conduct, may effect a greater degree of reformation than jail or prison confinement, and a showing that the terms of probation have been complied with would support a hope, at least, that reformation had been accomplished.'

Probation is obviously granted by an order. Section 1203.1, Penal Code, provides in part, '* * * in the order granting probation * * *.' The word 'probation' by its very name implies that the probationer must fulfill certain conditions to be entitled to the reward. Webster's New International Dictionary, 2d Ed., p. 1971, defines the word: 'The method of treating a delinquent, convicted of an offense, whereby he is not imprisoned but is released on a suspended sentence under supervision and upon specific conditions; * * *.'

As to the term of probation, section 1203.1, Penal Code, see footnote.

In the case before us the judge made no statement as to the term, and therefore whatever the term is must, of necessity be implied. At the time when the statutes limited the length of the probationary period to the meximum sentence which could be given, appellate courts stated that when the trial judge was silent as to the term, it must be implied that the term is the longest for which probation is possible. In re Giannini, 18 Cal.App. 166, 122 P. 831; In re Herron, supra; People v. Wallach, 8 Cal.App.2d 129, 47 P.2d 1071.

In People v. Rye, 140 Cal.App.2d Supp. 962, 296 P.2d 126, 128, the court held that the probationary period, when the judge is silent on the matter, is equivalent to the maximum sentence which could be given, and not the maximum possible term of probation. In the Rye case the defendant was found guilty of a misdemeanor and sentenced to pay a fine of $10.00, and in case the fine was not paid forthwith the defendant was to be imprisoned in jail for one day for each $5.00 of the fine not paid until the fine was satisfied in full and thereafter the judge ordered "sentence is hereby suspended." The appeal in the Rye case was "from the order suspending the execution of the judgment." The appellant contended that the order either placed the defendant upon probation or was void and if it was an order for probation then the order was nevertheless erroneous. The court held, among other things, that the order in effect was to place the defendant on probation. There was no motion made in the Rye case, as there was in the instant case, that the defendant's fingerprints be taken and he be furnished with probation papers, etc.

Petitioner here contends that the statutory provisions are mandatory, and therefore the judge is required to follow his order granting probation with further acts, that is:

1. To direct that the probationer be fingerprinted.

2. To direct the probationer to report either to the court or to the probation officer.

3. To furnish defendant with probation papers stating:

a. the length of probation;

b. the terms and conditions of...