People v. Thornton, Cr. 8708

• Decision Date: 14 January 1971
• Docket Number: Cr. 8708
• Citation: 92 Cal.Rptr. 327,14 Cal.App.3d 324
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Weldon THORNTON, Defendant and Appellant.

Page 327

92 Cal.Rptr. 327

14 Cal.App.3d 324

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Weldon THORNTON, Defendant and Appellant.

Cr. 8708.

Court of Appeal, First District, Division 3, California.

Jan. 14, 1971.

Paul Mike Goorjian, Goorjian & Bell, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, Michael J. Phelan, Deputy Attys. Gen., San Francisco, for respondent.

DRAPER, Presiding Justice.

Does admission to probation upon a felony conviction require that the defendant be granted probation after reversal of the judgment and conviction upon retrial? That is the issue presented by this appeal.

In 1968, a jury convicted defendant of grand theft. Imposition of sentence was suspended, and he was admitted to probation for 3 years on condition he serve 8 months in county jail and make restitution to each of his victims. He appealed and the judgment was reversed May 23 (1 Crim. No. 7149, unpublished) for error in instructions. Upon retrial, a jury again found him guilty. He was then sentenced to state prison. He now asserts that the greater punishment after reversal and retrial is impermissible.

In 1963, California first adopted the rule that a defendant who had been convicted, appeals, and secures reversal, cannot be subjected to a greater penalty when reconvicted, upon his second trial, of the same offense in the same degree (People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677). In that case, defendant had been sentenced to life imprisonment upon his guilty plea, but the death penalty was imposed after trial following reversal. In 1967 the rule was extended to bar consecutive sentences after reversal of the first judgment which had made the sentences concurrent (People v. Ali, 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932). Breadth of the rule is demonstrated in a 1965 decision (In re Ferguson, 233 Cal.App.2d 79, 43 Cal.Rptr. 325). There defendant had been convicted of an offense punishable by incarceration in either county jail or state prison. At the first trial, the jury fixed a county jail term as the penalty. New trial was granted, and at retrial a jury ordered confinement in state prison. The court held that defendant could be compelled to serve only the lesser county jail sentence. The theory of these decisions is that 'a defendant should not be required to risk being given greater punishment on a retrial for the privilege of exercising his right to appeal' (People v. Ali, supra, 66 Cal.2d at p. 281, 57 Cal.Rptr. at p. 351, 424 P.2d at p. 935) or to move for new trial. (In re Ferguson, supra.)

None of these cases concerns a grant of probation at the first trial, and all make absolute the bar of increased punishment after retrial. We recognize, of course, that admission to probation is a matter of grace, and that a broad discretion in such matters is reposed in the trial court. It could well be unsound to extend the absolute bar to cases in which probation has been granted at first trial, if new circumstances which would have readily warranted denial or revocation of probation in the first instance are revealed at the second trial or in the probation report filed after the second conviction. A reasonable solution, however, is suggested by a recent federal decision (North...