People v. Overton

• Decision Date: 21 March 1961
• Docket Number: Cr. 7350
• Citation: 190 Cal.App.2d 369,11 Cal.Rptr. 885
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Phillip OVERTON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 885

11 Cal.Rptr. 885

190 Cal.App.2d 369

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Phillip OVERTON, Defendant and Appellant.

Cr. 7350.

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

March 21, 1961.

Milton William Gordon, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Jack E. Goertzen, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Appellant was charged in an indictment with one count of violating section 11530, Health and Safety Code (possession of marijuana). One Robert Otto was charged along with appellant in this count and was charged separately in a second count with the same crime.

Appellant was arraigned and entered a plea of guilty. A probation officer's report was ordered. Appellant's motion to vacate his plea of guilty was denied. Probation was denied, and he was sentenced to the state prison.

When appellant's application for probation came on the hearing, the trial judge stated he had read and considered the probation officer's report and inquired whether there was any reason why judgment should not be pronounced. Counsel for appellant thereupon objected to the court's consideration of the report on the ground that it contained extrajudicial statements indicating that his client was involved in narcotic activities with his codefendant Otto other than count I charging him with possession of marijuana. Counsel then made a motion for a continuance of the hearing on probation and sentence and that 'a new probation report be made which will only go into the facts that we have pleaded guilty to here.' Counsel also moved that 'defendant be permitted to change his plea of 'guilty' to 'not guilty' because he is only guilty of one thing, and that is what he pleaded to * * * the possession of narcotics in his room, as he stated.' This appeal is from the 'judgment herein rendered * * * and from the judgment denying defendant's motion for continuance of hearing for probation and sentence, and denying defendant's motion to set aside his plea of guilty and permitting him to enter a plea of not guilty to the charge against him.'

We find no merit in any of appellant's contentions.

No appeal lies from an order denying probation (People v. Hinton, 166 Cal.App.2d 743, 749, 333 P.2d 822; People v. Winston, 46 Cal.2d 151, 154, 293 P.2d 40.) 'But where the denial is (1) for lack of jurisdiction (Schaefer v. Superior Court, 113 Cal.App.2d 428, 438, 248 P.2d 450); or (2) because the court failed to follow the statutory requirements pertaining to probation (People v. Wade, 53 Cal.2d 322, 338, 1 Cal.Rptr. 683; People v. Hollis, 176 Cal.App.2d 92, 99, 1 Cal.Rptr. 293); or (3) because there is a clear showing of abuse of discretion (People v. Cooper, 123 Cal.App.2d 353, 357, 266 P.2d 566, People v. Wade, supra), such denial may be reviewed on an appeal from the judgment.' People v. Lewis, 187 Cal.App.2d 373, 9 Cal.rptr. 659, 662.

In passing on an application for probation, the trial judge has a wide discretion in exercising his judgment, and his judgment will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. People v. Hollis, 176 Cal.App.2d 92, 96, 1 Cal.Rptr. 293; People v. Johnson, 164 Cal.App.2d 470, 480, 330 P.2d 894.

The law is clear that the denial of a motion to continue a hearing on probation and sentence rests in the sound discretion of the court and will be upheld on appeal, absent an abuse of such discretion. People v. Williams, 168 Cal.App.2d 624, 627, 336 P.2d 245; People v. Markos, 146 Cal.App.2d 82, 86, 303 P.2d 363.

Appellant's basic objections to the probation report are that it contained hearsay and related his connection with his codefendant's narcotic activities without giving him an opportunity to present rebuttal evidence. He wanted a report that would go only into the facts to which he had plead guilty, viz., possession of marijuana. He misconceives the purpose and scope of such a report. Section 1203, Penal Code, directs the probation officer to make 'an investigation of the circumstances surrounding the crime and the prior record and history of the defendant,' to make 'a written report to the court of the facts found upon such investigation,' and to accompany said report 'with his written recommendations * * * as to the granting or withholding of probation to the defendant.'

Appellant's connection with the narcotic activities of his codefendant Otto, in whose house he had lived for some months, was properly brought out by the probation report as one of ...