People v. Soukup

• Decision Date: 13 April 1983
• Docket Number: Cr. 42692
• Citation: 190 Cal.Rptr. 635,141 Cal.App.3d 858
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edward SOUKUP, Defendant and Appellant.

Page 635

190 Cal.Rptr. 635

141 Cal.App.3d 858

The PEOPLE, Plaintiff and Respondent, v. Edward SOUKUP, Defendant and Appellant.

Cr. 42692.

Court of Appeal, Second District, Division 5, California.

April 13, 1983.

Hearing Denied June 29, 1983.

William Sheffield, Santa Ana, for defendant and appellant.

George Deukmejian and John K. Van de Kamp, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Robert D. Breton, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

Appellant Edward Soukup appeals from the trial court's order denying his motion to be discharged from probation after his conviction had been affirmed on appeal. He claims that his period of probation expired before the trial court ordered his judgment into execution.

In 1979, appellant was convicted in the Superior Court of Los Angeles County of four counts of grand theft and one count of conspiracy to commit grand theft. The judgment is contained on a form which provides for the checking of boxes and the filling of blanks. It indicates that proceedings were suspended on June 28, 1978, and appellant was placed on three years' probation on condition, among others, that he serve the first year in county jail. "Stay of execution" was granted to 1:30 p.m. on July 12, 1978, "pending posting of appeal bond." The court set bail in the amount of $3,000 and released appellant on his own recognizance pending posting of an appeal bond by the indicated date. The form then contains a typewritten notice that bail for appeal was posted on the same date.

Subsequently, in People v. Coy (May 18, 1981) 2 Crim. 34175, this court affirmed the judgment as to the four counts of grand theft, reversing only the conspiracy count. On August 26, 1981, the Supreme Court denied a hearing and the remittitur issued. The trial court ordered the judgment into execution on October 1, 1981. On September 30, 1981, the court granted appellant a stay of execution to allow him to move for modification of probation. In a hearing on November 30, 1981, it denied appellant's motion to be discharged from probation, but continued the hearing on his motion to modify probation pending this appeal. Appellant has remained free on his own recognizance since then.

Appellant contends the execution of his three-year probationary period was stayed only until July 12, 1978. He maintains that even though he was excused from serving his jail time pending appeal, his probation commenced on July 12, 1978, and expired prior to the date the trial court ordered the judgment into execution following affirmance on appeal. After July 12, 1981, he argues, the trial court lacked jurisdiction to modify his probation, and could do nothing but discharge him.

The validity of appellant's contention turns on whether execution of his judgment was stayed pending appeal. If his entire period of probation had expired, the trial court thereafter lacked jurisdiction to enforce or modify it. (Pen.Code, § 1203.3; In re Griffin, 67 Cal.2d 343, 346, 62 Cal.Rptr. 1, 431 P.2d 625; People v. O'Donnell, 37 Cal.App. 192, 196-197, 174 P. 102.) If probation was stayed, however, the period of probation did not commence to run until after issuance of remittitur, and the trial court retained jurisdiction to enforce or modify its judgment. (In re Kennick, 128 Cal.App.3d 959, 962, 180 Cal.Rptr. 731; In re Stallings, 5 Cal.App.3d 322, 330-331, 85 Cal.Rptr. 96.)

We find the trial court stayed appellant's entire probationary term not only until July 12, 1978, but pending the appellate decision. The court In re Kennick, supra, reached the same conclusion on nearly identical facts. The Kennick case was brought by Gary Kennick, appellant's codefendant in the original action. Kennick's judgment was recorded on a form identical to the one in the instant case. He also was granted three years' probation upon condition that he serve the first year in jail, and, as here, he received a " '[s]tay of execution' " to 1:30 p.m. on July 12, 1978, " 'pending posting of an appeal bond.' " (In re Kennick, supra, 128 Cal.App.3d 959, 964, 180 Cal.Rptr. 731.) In Kennick, this court pointed out that "[a] judgment is an integrated whole and a stay of its execution stays all of its parts unless the court specifies otherwise.... [p] [T]he usual progression is to have the confinement period served first to be followed by a phasing of the defendant into society under probationary supervision. It would be a rare case that a trial court would reverse the sequence.... In fact the trial court's judgment that defendant served the first year of the period in confinement points in exactly the opposite direction." (Id., at p. 963, 180 Cal.Rptr. 731; emphasis in original.) Turning to the judgment form itself, the court observed: "A common sense reading of that judgment leads to the single conclusion that the trial judge stayed the execution of the entire judgment on condition that the defendant post an appeal bond ... by the indicated date." (Id., at p. 964, 180 Cal.Rptr. 731, emphasis in original.) (See also People v. White, 133 Cal.App.3d 677, 682-683, 184 Cal.Rptr. 134.) The record in the instant case compels the same conclusion. Appellant's entire term of probation was stayed pending his appeal, and therefore did not commence until after the remittitur had been issued.

During oral argument, appellant cited In re Osslo, 51 Cal.2d 371, 377, footnote 6, 334 P.2d 1. There, the Supreme Court remarked that a release on bail granted to the Osslo defendants during pendency of their appeal did not suspend operation of their probation other than the provision of confinement. Appellant claims this case conflicts with In re Kennick, supra, and requires us to find that the trial court here lacked jurisdiction over him. Osslo, however, does not compel this result. As discussed above, the record in the instant case clearly shows the trial court here did not intend to stay only the first and most onerous condition of probation, but instead suspended probation entirely until the appellate process was concluded.

Even assuming, however, that appellant's release on bail stayed only the execution of his jail term and that the remaining conditions of probation continued to run as they did in Osslo, nothing indicates that the trial court thereafter lacked jurisdiction to enforce the one condition stayed. On the contrary, Penal Code section 1273 provides that in cases where imprisonment has been imposed, a defendant may be released on bail upon appeal only if he undertakes to "surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed ...." Clearly, the Legislature intended to permit a stay of imprisonment only if the defendant's full compliance with the judgment after completion of the appellate process was assured. The rule appellant here proposes would frustrate this legislative intent by turning the bail procedure into a device to escape imprisonment should the time required for disposition on appeal exceed the time set for probation. This is not the law.

Appellant...