People v. Ignazio

137 Cal.App.2d Supp. 881 (1955) THE PEOPLE, Respondent,

v.

JACK IGNAZIO, Appellant.

California Court of Appeals.

Nov. 23, 1955. Cantillon & Cantillon for Appellant.

Roger Arnebergh, City Attorney (Los Angeles), Donald M. Redwine, Assistant City Attorney, and Philip E. Grey, Deputy City Attorney, for Respondent. [137 Cal.App.2d Supp. 882]

SWAIN, J.

This is an appeal from an order of June 29, 1955, denying defendant's motion under Penal Code, section 1203.4, to set aside the verdict of guilty and dismiss the accusations. The notice of appeal is from an order "dismissing" the defendant's said motion. The minute order shows the motion was "denied" not "dismissed" but we shall disregard this misstatement in the notice.

The defendant was convicted of violating section 41.07 of Ordinance 77000 (resorting) of the city of Los Angeles, and of section 647, subdivision 5, of the Penal Code. He was granted probation on condition (a) that he serve 30 days in the county jail, and (b) that he commit no similar offense and be a law-abiding citizen. The term of his probation was three years. This probationary period expired without any charge being filed that he had violated the terms of his probation. Thereafter he moved to set aside the verdicts of guilty, enter a plea of not guilty, and dismiss the accusations as provided in Penal Code, section 1203.4. The appellant, relying on People v. Johnson (1955), 134 Cal.App.2d 140 [285 P.2d 74], claims that he is entitled to such an order as a matter of right. We do not agree, for he has not brought himself within the requirements of that case.

[1] The notice of motion did not state any grounds for the motion as required by rule 49 of the Los Angeles Municipal Court (p. 15, Rules of the Municipal Courts, County of Los Angeles), which reads in part: "Whenever notice of a motion is given, the notice shall specify the grounds of the motion ..." The importance of this omission is that Penal Code, section 1203.4, entitles a defendant to a dismissal only if he has "fulfilled the conditions of his probation." One of the conditions of his probation was "Defendant to commit no similar offense and be a law abiding citizen." In his notice of motion, the defendant did not state that he had "fulfilled the conditions of his probation." The rule in question was not waived; in fact, the court stated, "Let the record show the motion is denied solely upon the ground that the defendant has not stated any grounds for his motion."