In Re Marcus

BARNARD, P. J.

The petitioner seeks his release from custody on a writ of

habeas corpus.

He was charged with the commission of three separate felonies and pleaded guilty to each charge. His application for probation was granted, the same to run concurrently on all three charges, and he was placed on probation for three years beginning August 16, 1935, with the condition that the first sixty days of that period be spent in the county jail of San Diego County. On September 27, 1935, a so-called modified order was entered by the court purporting to modify the original order granting probation by requiring him to spend one year in the county jail beginning on August 16, 1935, in lieu of the former term of sixty days.

[360]

The only point raised is that the modified order entered on September 27, 1935, was in excess of the court’s jurisdiction and that the same is null and void because the court was without power to change the length of the jail term as fixed in the original order. It is, therefore, argued that since the petitioner has now been confined in jail for a time in excess of that named in the original order he has complied with the only condition which the court had the power to make in that connection and is entitled to a discharge.

The petitioner relies on the ease of

In re Hazlett,

137 Cal. App. 734 [31 Pac. (2d) 448], as decisive of the question now before us and argues that the change here made must be regarded not as a modification of the original order granting probation, but as an attempt to add a new condition thereto, and that the same is void.

In the order involved in the case just referred to the court extended the period of probation and at the same time pronounced judgment and sentence, the sentence to run concurrently with the period of probation. The order also had the effect of adding another term in jail as a new condition after a condition of the same kind and character imposed in the original order had been fully complied with. It was there held that while the court had the power to extend the term of probation it could not impose another term in jail as a new condition after the original condition of that nature had been fully complied with. Nothing further was there decided and we think this case may not be taken as holding that a condition in an order granting probation, requiring a portion of the time to be spent in jail, may not be modified by extending the period to be thus served when such change is made before the original condition has been fully complied with.