People v. Rojas

• Decision Date: 15 May 1962
• Docket Number: Cr. 7065
• Court: California Supreme Court
• Parties: , 371 P.2d 300 The PEOPLE, Plaintiff and Respondent, v. Alexander Aragon ROJAS and Joe Hidalgo, Defendants and Appellants.

Page 564

21 Cal.Rptr. 564

57 Cal.2d 676, 371 P.2d 300

The PEOPLE, Plaintiff and Respondent, v. Alexander Aragon ROJAS and Joe Hidalgo, Defendants and Appellants.

Cr. 7065.

Supreme Court of California, In Bank.

May 15, 1962.

Alexander L. Oster, Laguna Beach, for defendants and appellants.

Stanley Mosk, Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for plaintiff and respondent.

WHITE, Justice.

Defendants were convicted of the crime of attempting to receive stolen property. The defendant Hidalgo was sentenced to state prison while his codefedant Rojas was granted conditional probation after the suspension of proceedings as to him. This appeal is from the judgment pronounced against Hidalgo and the order granting probation to Rojas.

As to the factual background surrounding this prosecution, the record reveals that the defendant Hidalgo arranged to purchase a truck load of stolen electrical supplies from one Hall. Thereafter the truck was intercepted by police officers and the electrical supplies were technically in their custody when delivery was made to Hidalgo. The defendant Rojas was apprehended in the act of unloading the supplies at the defendants' place of business and admitted knowledge that the goods were stolen.

Defendant were originally convicted of receving stolen property. (Pen.Code, § 496.) Proceedings were suspended as to defendant Rojas and he was granted conditional probation while defendant Hidalgo was sentenced to state prison. On appeal to this court we modified the finding that defendants were guilty of the substantive offense of receiving stolen property to find them guilty of the offense of attempting to receive stolen property. (People v. Rojas, 55 Cal.2d 252, 10 Cal.Rptr. 465, 358 P.2d 921.) At page 261 of our opinion, at page 470 of 10 Cal.Rptr., at page 926 of 358 P.2d we directed that 'The judgment and probation order are reversed and the cause is remanded to the trial court for further proceedings not inconsistent with the views hereinabove expressed, and with directions to enter such lawful judgment or order against each defendant, based on the modified finding, as the court deems appropriate.'

When the cause was again before the trial court pursuant to our directions, counsel for defendants requested that the matter again be refered to the probation officer for a new and current report. The deputy district attorney also asked that the matter be then referred to the probation department for the reason that there had been further reports of receiving stolen property at the place of business where defendants had been apprehended. Without acting on the request the court continued the matter to a subsequent date. On that date counsel for defendants renewed the request, and the deputy district attorney joined therein. Thereupon the court remarked: 'I don't think it is necessary. * * * I don't see any reason for changing the sentence,' to which defense counsel responded: 'It must necessarily be changed. They were charged with a completed offense and not an attempt;' whereupon the court concluded, 'I don't understand it that way.'

The defendant Hidalgo was again sentenced to state prison for the term prescribed by law. Proceedings as to the defendant Rojas were suspended and probation granted for a period of five years on the condition, among others, that he spend the first 180 days in the county jail. Although it does not appear from the instant record, the period of and the terms and conditions for probation are identical in all material respects to those imposed on Rojas in the original proceedings, of which we take judicial notice. (Code Civ.Proc. § 1875, subd. 3; Flores v. Arroyo, 56 Cal.2d 492, 496-497, 15 Cal.Rptr. 87, 90, 364 P.2d 263, 266.) The two conditions imposed in the Flores case for the taking of judicial notice of a prior order, that the latter be 'appropriately drawn to the attention of' the court and that the opposing party have adequate notice and opportunity to be heard on the question of the effect of such prior order, have been clearly fulfilled herein. While the Flores case dealt with judicial notice by a trial court, the rules announced therein do not purport to be so limited. (See Preston v. Wyoming Pac. Oil Co., 197 Cal.App.2d 517, 17 Cal.Rptr. 443.)

It is urged herein by defendants that the trial court abused its discretion in reimposing the identical punishment after this court ordered a reduction in the convictions to an attempt to commit the substantive crime. The defendant Hidalgo did not in fact receive the same punishment. Although he was sentenced in both instances to the term prescribed by law the maximum term for the attempt as imposed in the instant proceedings is but one-half the maxmum term for the substantive crime. (Pen.Code, § 664, subd. 1.) Moreover, as to the defendant Rojas we are persuaded that the contention lacks substance. Since the modified findings of guilt were altered only as to the legal effect of the facts surrounding the crime, rather than the findings of fact which constituted the crime itself, the conditions of probation instantly imposed by the trial court would not appear to be an abuse of the broad discretion vested in that court to impose terms and conditions of probation 'to the end that justice may be done.' (Pen.Code, § 1203.1; see also People v. Hollis, 176 Cal.App.2d 92, 97, 1 Cal.Rptr. 293.) The probation period of five years is allowed herein by statute, as is the condition that Rojas spend the first 180 days in the county jail. (See Pen.Code, §§ 1203.1, 496, 664.)

We are persuaded, however, that the trial court erred in refusing to refer defendants' case to the probation department for a current report before imposing sentence in the case of Hidalgo and the instant terms of probation in the case of Rojas. Moreover, in the case of Hidalgo it appears that the court failed to even consider the application for probation. Although the minutes state, 'Probation denied,' the reporter's transcript indicates that after much discussion relative to a referral to the probation department no order was expressly made denying probation and sentence was immediately imposed. In any event there is no record of compliance with the mandate of section 1203 of the Penal Code that '* * * in every felony case in which the defendant is eligible for probation, before any judgment is pronounced, and whether or not an application for probation has been made, the court must immediately refer the matter to the probation officer to investigate and to report to the court, at a specified time, upon the circumstances surrounding the crime and concerning the defendant and his prior record, which may be taken into consideration either in aggravation or mitigation of punishment. * * * At the time or times fixed by the court, the court must hear and determine such application, if one has been made, or in any case the suitability of probation in the particular case, and in connection therewith must consider any report of the probation officer, and must make a statement that it has considered such report which must be filed with a clerk of the court as a record in the case. * * *' (Emphasis added.) The statement referred to in section 1203 does not appear as a matter of record. In view of the circumstances under which the proceedings were had and the lack of the statement by the court, it is manifest that the recital in the reporter's transcript must control over the bare statement in the...