People v. Smith

• Decision Date: 02 November 1970
• Docket Number: Cr. 822
• Citation: 90 Cal.Rptr. 811,12 Cal.App.3d 621
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Holt Eugene SMITH, Defendant and Appellant.

Page 811

90 Cal.Rptr. 811

12 Cal.App.3d 621

PEOPLE of the State of California, Plaintiff and Respondent, v. Holt Eugene SMITH, Defendant and Appellant.

Cr. 822.

Court of Appeal, Fifth District, California.

Nov. 2, 1970.

[12 Cal.App.3d 623] Howard Renge, Court appointed, Fowler, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., Sacramento, for plaintiff-respondent.

OPINION

COAKLEY, Associate Justice.

This is an appeal from a judgment sentencing the appellant to prison following an order revoking probation. Appellant contends that the judgment must be reversed because:

(1) The term of his probation had automatically expired on May 6, 1969, and, therefore, the court had no jurisdiction when it sentenced him to prison on August 5, 1969; and

(2) The probation officer's Special Report, upon which his probation was revoked, failed to allege any specific violation of the terms of probation.

Where, as here, imposition of judgment is suspended and probation granted and later revoked, the order revoking probation is not appealable, but the judgment imposing sentence, which follows upon revocation is appealable. ¹ However, on an appeal from such judgment, the court will review the validity and merits of the order revoking probation. (People v. Robinson, 43 Cal.2d 143, 271 P.2d 872; People v. Walker, 215 Cal.App.2d 609, 30 Cal.Rptr. 440; Witkin, Cal.Criminal Procedure, Appeal, §§ 650, 651, pp. 642--643.)

The record contains ambiguities and gaps, but from it we glean the following:

Appellant was convicted of possession of one marijuana cigarette. (Health & Saf.Code § 11530.) On April 6, 1966, imposition of sentence was suspended and appellant was placed on probation for three years. He served nine months in jail as one of the conditions of probation. On April 18, 1969, the court made an order that appellant be released from the custody of the Fresno County sheriff and that he report to Department 5 of the Superior Court not later than 1:30 p.m. on Friday, April 25, 1969. ² That order concluded with these words:

'All other terms of Probation heretofore granted shall remain in full force and effect.' ³

The minutes of the hearing of April 25, 1969, contain the following:

'The defendant did not appear.

'The matter (hearing on Special Report of Probation Officer recommending revocation of probation) is submitted to the Court for a ruling, and it is ordered that defendant's probation is revoked, and that a Bench Warrant issue for his arrest in order that said defendant may be brought before this Court for judgment and sentence.'

When the orders of April 18 and April 25 are read together, it becomes clear that the court considered appellant's probation to be in effect in April and continued to be in effect until revoked on April 25. It is equally clear that probation was revoked on April 25, and a bench warrant was issued so that judgment and sentence could be imposed, imposition thereof having been suspended approximately three years earlier, i.e., May 6, 1966.

On August 5, 1969, appellant and the public defender being present, judgment was imposed sentencing appellant to prison for the offense of which he was convicted in 1966, i.e., possession of a marijuana cigarette, and for which he had already served nine months in jail. The minutes of the proceedings of August 5, 1969, are on a printed form used by many courts in criminal proceedings. It is the practice for the clerk to record the proceedings by placing check marks in front of those lines on the form which appropriately describe the nature of the proceedings and what transpired. As checked off the minutes of August 5 are ambiguous as to whether the purpose of the hearing was to determine if probation should be revoked or whether the purpose was to pronounce judgment. The ambiguity in the minutes is clarified by recourse to the reporter's transcript of that day wherein, in response to the appellant's request that the court 'not revoke my probation,' the court replied: 'Probation has heretofore been revoked and will remain revoked.'

From the reporter's transcripts of the proceedings on August 5, and supplemental proceedings on August 22, 1969, it is clear that the reason that judgment had not been imposed on or shortly after revocation of probation on April 25, 1969, was because the appellant was in jail in another county or counties on April 25, and intermittently thereafter until August 5, 1969.

It is settled that probation may be revoked solely upon the probation officer's report, and the absence of an opportunity to appear and be heard does not violate any constitutional or statutory right of a probationer. (In re Levi, 39 Cal.2d 41, 244 P.2d 403; In re Davis, 37 Cal.2d 872, 236 P.2d 579; People v. De Waele, 224 Cal.App.2d 512, 36 Cal.Rptr. 825; People v. Walker, Supra, 215 Cal.App.2d 609, 30 Cal.Rptr. 440; In re Dearo, 96 Cal.App.2d 141, 214 P.2d 585.)

It is also settled that an order revoking probation, to be valid, must be made within the period fixed in the order of probation. If not revoked within that period, the probation terminates automatically on the last day. (Pen.Code § 1203.3; People v. Williams, 24 Cal.2d 848, 151 P.2d 244.)

There is no requirement, however, that sentence be imposed prior to the date fixed for termination of probation so long as probation has been revoked prior to said date. Judgment may be imposed simultaneously with revocation, or it may be imposed at a later date, particularly where a defendant is incarcerated outside the jurisdiction of the court or cannot be located with reasonable diligence at the time of revocation. (See In re Perez, 65 Cal.2d 224, 232, 53 Cal.Rptr. 414, 418 P.2d 6; and People v. Williams, Supra, 24 Cal.2d 848, 151 P.2d 244.) In Williams, the court held that revocation of probation within the two-year term thereof, followed by judgment approximately five years after revocation, was valid, the appellant having been in out-of-state prisons at the time of revocation and until judgment.

To require defendant's presence as a condition precedent to revocation would be to reward, by an automatic termination, a probationer who may be in hiding for that very purpose or who may be in prison outside the jurisdiction for a crime committed in violation of his probation. (See In re Davis, Supra, 37 Cal.2d 872, 236 P.2d 579.)

We hold, therefore, that appellant's absence does not nullify the proceedings and revocation of April 25, 1969. This is not to say, however, that probation should be revoked without notice and an opportunity to be heard wherever, with reasonable diligence, the probationer can be given such notice and opportunity. Numerous situations may be conjured in which the probationer is in technical violation only, and has a valid excuse, which, if presented, would render revocation an abuse of discretion. (See In re Perez, Supra, 65 Cal.2d 224, 229--230, 53 Cal.Rptr. 414, 418 P.2d 6.) Fairness and sound judicial administration require no less. (See In re Dearo, Supra, 96 Cal.App.2d 141, 143, 214 P.2d 585.)

We now consider appellant's remaining contention for reversal, viz., that probation may not be revoked where the probation officer's report and recommendation upon which the court acted failed to allege any specific violation of the terms of probation. Before ruling on this proposition, we deem it advisable to set out certain well-established principles of law relative to probation and its revocation. They are summarized in People v. Taylor, 260 Cal.App.2d 393, 395, 67 Cal.Rptr. 180, 182:

'Probation is not a right but an act of clemency that may be withdrawn if the privilege is abused (People v. Keller, 245 Cal.App.2d 711, 715, 54 Cal.Rptr. 154). Like the granting or denial of probation, revocation rests entirely in the sound discretion of the trial court. Thus, probation may be revoked if there are reasons for the court to believe from the probation report that defendant has violated any of the terms or conditions of probation (People v. Walker, 215 Cal.App.2d 609, 612, 30 Cal.Rptr. 440). While the discretion of the trial court to revoke probation is said to be 'very broad,' the court may not act arbitrarily or capriciously. Its determination must be based on the facts before it * * *.'

(See People v. Walker, Supra, and numerous cases cited therein.)

Where revocation is based solely on the probation officer's report and absent other competent evidence, the facts before the court...