Wadler v. Justice's Court of Merced Judicial Dist.
| Decision Date | 28 September 1956 |
| Citation | 301 P.2d 907,144 Cal.App.2d 739 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Herman H. WADLER, Petitioner and Appellant, v. JUSTICE'S COURT OF MERCED JUDICIAL DISTRICT, County of Merced, State of California, Respondent. Civ. 8940. |
Mellis & Stockton, Modesto, for appellant.
F. A. Silveira, City Atty., by William L. Garrett, Deputy City Atty., Merced, and Edmund G. Brown, Atty. Gen., by Doris H. Maier, Deputy Atty. Gen., for respondent.
This is an appeal from a judgment of the Superior Court of Merced County denying a writ of prohibition.
Appellant Herman Wadler was found guilty after a jury trial on two counts of a violation of Penal Code section 415 (disturbing the peace). The Justice Court on February 15, 1955, pronounced 'judgment' on each count as follows:
* * *'
An appeal was taken from the 'judgment.'
On April 23, 1955, one Antone J. Borba made a citizen's arrest of Mr. Wadler. At the time of the arrest Borba made a charge that Wadler was disturbing the peace, and Wadler was booked on the charge. On April 25, 1955, Mr. Borba signed a complaint charging Wadler with a violation of section 1203.2 of the Penal Code which deals with re-arrest and revocation of probation. A demurrer to the complaint was filed, and Mr. Wadler entered a plea of not guilty to the charge. On May 23, the Justice Court sustained the demurrer and ordered the proceeding stayed to be set at a later date for hearing. After the appeal on Mr. Wadler's original conviction was affirmed, notice was recived by Mr. Wadler of a hearing to determine the violation of his probation. At this hearing on June 29, 1955, Mr. Wadler, through his attorney, made certain motions:
1. To dismiss the original charge (under Penal Code, sec. 415) on which he was arrested by Mr. Borba.
2. To dismiss the complaint based on section 1203.2 because a demurrer to the complaint was sustained and no amended pleading was filed within the time provided by sections 1007 and 1008 of the Penal Code, and therefore the court had no jurisdiction to continue.
3. To dismiss the complaint on the ground that the arrest was illegal since section 1203.2 does not provide for arrest by a private citizen.
4. To dismiss the complaint because there was no arrest as provided by the section.
These motions were denied and a hearing was held at which both sides presented evidence.
The record shows that the court then made the following order:
Prior to the execution of the sentence Mr. Wadler applied to the Superior Court for a writ of prohibition. An alternative writ issued. The City Attorney of the City of Merced filed an answer on behalf of the respondent Justice Court. Petitioner moved that this answer be stricken because, as he alleged, the City Attorney was without authority to represent respondent. This motion was denied.
Following a hearing on the order to show cause the court made the following order: 'The Court orders Writ of Prohibition is denied and further orders that the proceedings in the lower court have been regular and legal.'
As grounds for a reversal of the judgment of the Superior Court denying his application for a writ of prohibition, appellant makes the following major contentions:
1. The complaint charging violation of section 1203.2 of the Penal Code should have been dismissed for failure to comply with the provision of sections 1007 and 1008 of the Penal Code;
2. That the complaint for violating Penal Code section 1203.2 failed to state a public offense;
3. That the arrest was not made in conformity with the provisions of section 1203.2;
4. That petitioner did not violate the terms of his probation;
5. That petitioner was never arraigned for judgment;
6. That the judgment contained illegal conditions;
7. That the Superior Court should have granted petitioner's motion to strike respondent's answer;
8. That the judgment of the Superior Court is void because it is not supported by findings of fact or conclusions of law.
Before discussing these contentions we think it well to point out that section 1203.2 of the Penal Code provides in part as follows:
'At any time during the probationary period of the person released on probation in accordance with the provisions of these sections, any probation or peace officer may without warrant, or other process, at any time until the final disposition of the case, rearrest any person so placed on probation under the care of a probation officer, and bring him before the court, or the court may in its discretion issue a warrant for the rearrest of any such person and may thereupon revoke and terminate such probation, if the interests of justice so require, and if the court in its judgment, shall have reason to believe from the report of the probation officer, or otherwise, that the person so placed upon probation is violating any of the conditions of his probation, * * *.'
and that section 1203.3 provides in part:
'The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence.'
As stated by our Supreme Court in In re Levi, 39 Cal.2d 41, at page 44, 244 P.2d 403, at page 404:
...
To continue reading
Request your trial
-
Northern Cal. Police Practices Project v. Craig
...184 Cal.App.2d 571, 579, 7 Cal.Rptr. 725; Jenner v. City Council (1958) 164 Cal.App.2d 490, 501, 331 P.2d 176; Wadler v. Justice Court (1956) 144 Cal.App.2d 739, 744, 301 P.2d 907.) Moreover, as a special proceeding authorized by a specific statute (§ 6258), findings are not required as the......
-
People v. Root
...at page 44, 244 P.2d at page 404; see also People v. Johns, 1959, 173 Cal.App.2d 38, 43, 343 P.2d 92, and Wadler v. Justice Court, 1956, 144 Cal.App.2d 739, 743, 301 P.2d 907. In view of the above rules there is no requirement that Alberti, referred to in the probation officer's report, be ......
-
Burns v. Municipal Court of Los Angeles Judicial Dist.
...to act in a certain manner. Abelleira v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715; Wadler v. Justice Court, 144 Cal.App.2d 739, 301 P.2d 907; In re Meisner, 30 Cal.App.2d 290, 86 P.2d 124; Ralph v. Police Court, 84 Cal.App.2d 257, 190 P.2d 632. It is synonymous ......
-
Jenner v. City Council of City of Covina
...of fact is necessary on a question of law. City of Alameda v. City of Oakland, 198 Cal. 566, 578, 246 P. 69; Wadler v. Justice's Court, 144 Cal.App.2d 739, 744, 301 P.2d 907. Plaintiffs in paragraphs XVI-XIX alleged that the following sections of the Streets and Highways Code were unconstit......