Holder v. Superior Court

Opinion

BURKE, J.

Earl Ray Holder, an inmate at the California Institution for Men at Chino, seeks mandamus to compel the San Diego County Superior Court “to take jurisdiction of [his] petition for probation pursuant to [a provision in Pen. Code, § 1168] and to decide the case on its merits.”

1

We have

[781]

concluded that section 1168 does not authorize the granting of probation as an alternative to release on parole but rather empowers the court to recall a prison sentence and commitment and to resentence the defendant where it appears from the diagnostic study and approved recommendations that the prison sentence should never have been imposed. In view of that conclusion it is clear that respondent has already decided the case on its merits and that therefore the alternative writ should be discharged and the peremptory writ denied.

In 1961 Holder pleaded guilty to burglary (Pen. Code, § 459) and was sentenced to prison. He subsequently was paroled by the Adult Authority, but his parole was revoked. Thereafter on several occasions the Adult Authority refused parole following a review of his case.

In 1968 he filed the petition for probation. Respondent initially declined to take jurisdiction on the ground that the provision relied upon in section 1168 should not be retroactively applied to the present case, in which the conviction preceded the enactment of the provision. Holder then sought mandamus, and it was held that the provision applied to him and respondent was ordered to hear the petition on its merits.

(Holder

v.

Superior Court,

269 Cal.App.2d 314 [74 Cal.Rptr. 853].)

Thereafter, in April 1969, the case was orally argued before respondent, and later that month respondent, by a letter, declined to grant probation. It appears from the letter that respondent interpreted section 1168 as securing to it power to review and control retrospectively its own actions in sentencing a defendant to prison, and it appears implicit in the letter that respondent did not believe that the matters presented to it showed that its actions in the instant case were improper.*