People v. Brown

SHINN, P. J.

Appeal by defendant from a judgment sentencing him to state prison. On April 23, 1936, in a trial to the court defendant was adjudged guilty of the offense of attempted robbery by means of force and fear. He was subject to imprisonment for a period of not less than one nor more than 20 years (Pen. Code, § 664.) Imposition of sentence was suspended and defendant was placed on probation for a term of 10 years on condition that he serve the first six months in the county jail, obey all the laws and report regularly to the probation department. On June 14, 1937, in his absence, a report of violation of probation was filed, probation was revoked and a bench warrant was issued. The

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violation of probation consisted of defendant’s failure, after March, 1937, to report monthly to the probation officer. On November 1, 1951, defendant was in court with counsel and was sentenced to the state prison for the term prescribed by law. It thus appears that defendant was sentenced 15 years and 7 months after he was placed on probation, and 14 years and 5 months after probation had been revoked. In the meantime defendant had married, had become the father of four children, and so far as appears in the record had not been found guilty of violating any law and did not even know that probation had been revoked.

Defendant contends that the court lost jurisdiction to sentence him upon the expiration of the term of probation. He outlines his argument as follows: The court has no jurisdiction under the probation laws, section 1203 et seq., of the Penal Code, to place a person on probation for a longer term than is prescribed as the maximum punishment for the offense of which he has been convicted; it is manifest throughout the scheme of probation that the Legislature never intended for the court to retain jurisdiction of a person beyond the term fixed by the court as the probationary period; if the court can impose sentence at any time after the expiration of the term of probation, it can do so even after the expiration of the maximum time for which probation could be granted; during the term of probation, even though probation is revoked, the court can still change its order, but if, when probation has been revoked, the court cannot, after the expiration of the term, change the terms of probation and must sentence the defendant, the authorities can by mere inaction deprive the probationer of an opportunity to prove meritorious grounds for remaining on probation; it could not have been the intention of the Legislature to provide that if probation is revoked within the prescribed term the probationer is subject during the remainder of his life to the imposition or execution of sentence.