People v. Brown

WOOD (Parker), J.

—Defendant pleaded guilty to a charge of escape from a state prison (violation of Pen. Code, § 4531). Thereupon a probation report was ordered, and the matter was continued five days—to February 11, 1958. On said date, the defendant was sentenced to imprisonment in the state prison, probation for five years was granted, and execution of the sentence was suspended.

On May 21, 1958, in the presence of defendant and his counsel (deputy public defender), the judge said that he had made an error in law in giving defendant probation. Then the judge revoked the order granting probation and sentenced defendant to state prison for the term prescribed by law. Defendant appeals from the “judgment” rendered on May 21, 1958. He contends that the court erred as a matter of law in revoking probation. His argument is that the court was empowered under section 1203 of the Penal Code to grant probation, and since the court in the exercise of its discretion granted probation, and since there was no error in law in granting probation, and since there was no evidence that appellant had violated the terms of probation, the order revoking probation should be reversed. He argues further that probation was revoked “on an erroneous point of law.” With reference to the reason for revoking probation, the reporter’s transcript shows, as above stated, that the judge said he had made an error in law in granting probation. The record does not show, however, that the judge made any statement designating the error of law so referred to by him. With reference to the reason for revoking probation, appellant states in his brief that the trial judge “feeling that it was not within his power to grant defendant probation by determining the facts and exercising his discretion, revoked the probation. ’ ’

[32]

Respondent asserts that appellant was not eligible for probation, and that the order revoking probation was proper.

Section 4531 of the Penal Code provides, in part: “Every prisoner committed to a State prison . . . who escapes . . . from any prison road camp ... or other prison camp . . . while under the custody of prison officials ... is punishable by imprisonment in a State prison for a term of not less than one year . . . .” j

Section 1203 of the Penal Code (Stats. 1951, Ch. 1438, p. 3396), in effect when the escape occurred (July, 1954), provides, in part: