People v. Rye, Cr. A

• Decision Date: 16 March 1956
• Docket Number: Cr. A
• Citation: 140 Cal.App.2d Supp. 962,296 P.2d 126
• Court: California Superior Court
• Parties: 140 Cal.App.2d Supp. 962 The PEOPLE of the State of California, Appellant, v. Bascom DeVaun RYE, Respondent. 2568. Appellate Department, Superior Court, Ventura County, California

Page 126

296 P.2d 126

140 Cal.App.2d Supp. 962

The PEOPLE of the State of California, Appellant, v. Bascom DeVaun RYE, Respondent.

Cr. A. 2568.

Appellate Department, Superior Court, Ventura County, California.

March 16, 1956.

Roy A. Gustafson, Ventura, for appellant.

M. Arthur Waite, Ventura, for respondent.

Robert B. Maxwell, Oxnard, amicus curiae.

BLACKSTOCK, Presiding Judge.

On the 19th day of January, 1956, in the Municipal Court of Oxnard--Port Hueneme Municipal District of Ventura County, California, the respondent (defendant in the Court below) was convicted of violation of the California Vehicle Code, Section 560(a).

Whereupon, the Court pronounced judgment as follows 'The Court orders that defendant is sentenced to pay a fine of ten ($10.00) dollars and in case all of said fine is not paid forthwith, defendant is to be imprisoned in the Oxnard City Jail for one day for each $5.00 of the fine not paid until the fine is satisfied in full.

'Whereby all of said sentence is hereby suspended.'

The People appeal 'to the Superior Court of the State of California in and for the County of Ventura, from the order suspending the execution of the judgment rendered by said Municipal Court on January 19th, 1956, * * * which said order was rendered subsequent to the pronouncement of said judgment on said date.' (Emphasis ours.)

The respondent argues that the people waived the right to appeal at the time the order appealed from was made, but we do not agree with respondent in this respect.

The appellant contends on appeal, 'that the order either places said defendant upon probation or is void, and if the effect of the order is to place said defendant upon probation then the order, while not void, is nevertheless erroneous because the trial court failed to follow the statutory procedure to place the defendant upon probation in the following respects: It did not (1) set the term of the probationary period, (2) impose and require conditions of probation, (3) require said defendant to report to the court or to the probation officer during the period of term of his probation, (4) require that the fingerprints of said defendant be taken, (5) furnish defendant with probation papers, and (6) inform defendant of his rights under Section 1203.4 of the Penal Code.'

We think the appellant has misconceived the law applicable to this case.

It is conceded on all sides that the Municipal Court judge merely pronounced judgment as above set forth and said nothing whatever about probation. But there is no question in our minds but that the effect of the order as made by the Municipal Court was to place the defendant on summary probation. Section 1203b of the Penal Code is as follows:

'All courts having jurisdiction to impose punishment in misdemeanor cases shall have the power to grant probation summarily in misdemeanor cases without referring such cases to the probation officer.' (Emphasis ours.)

This section became effective February 4, 1941.

It is provided in effect by section 1203a, Penal Code that any court having jurisdiction to impose punishment in misdemeanor cases shall have the power to suspend the imposing or the execution of the sentence.

Section 1203a, Penal Code was not repealed by section 1203.1 of the same code and remains one of the exceptions provided in the latter section. In re Clausen, 14 Cal.App.2d 246, 247, 57 P.2d 1353.

We have carefully read the briefs of both the appellant and respondent and examined all of the cases cited by either side and we have made some considerable independent research, but we are not convinced that there is any merit in this appeal.

In our opinion, Penal Code sections 1203 to and including section 1203.4 justify us in holding that it cannot be held that an order of probation omitting any expressed conditions or terms of the probation for that reason lacks any of the essential elements of a valid and legal order. People v. Lippner, 219 Cal. 395, 399, 26 P.2d 457.

We believe that the Penal Code sections above referred to are implied provisions of probation. People v. Lippner, supra.

The cases implying probation from an order, 'sentence suspended' hold that the implied term was for the maximum possible term of imprisonment. See In re Giannini, 18 Cal.App. 166, at page 169, 122 P. 831; In re Herron, 217 Cal. 400, at page 405, 19 P.2d 4; People v. Wallach, 8 Cal.App.2d 129, at page 132, 47 P.2d 1071.

Since the rendition of the opinions in the cases above cited there have been statute changes. However, we believe that the maximum period of probation provided by the Penal Code sections where the present law is found, sections 1203.1 and 1203a, is still the full term for which the defendant could be sentenced to imprisonment. This is so despite the fact that the judge, by specific action on his part, could continue the period of probation for three years, even though this was beyond the maximum period of sentence. Penal Code section 1203.1 provides in part that 'the * * * judge * * * may suspend the imposing, or the execution of the sentence and may direct that such suspension may continue for such period of time...