People v. Cannon

DOOLING, J.

Defendant has appealed from an order revoking his probation. Appellant pleaded guilty to the crime of bookmaking (Pen. Code, § 337a). He was placed on probation for two years on condition that he serve six months in the county jail and make restitution in the sum of $500.

After he had completed the term in jail and commenced to satisfy the order for $500 restitution he was arrested for the violation of a municipal ordinance (arranging for another to have an act of sexual intercourse). Thereupon an assistant probation officer had a motion to revoke appellant’s probation in this matter placed on the calendar of the superior court. After some continuances on January 17, 1958, the adult probation officer withdrew his motion to revoke probation and at the same time the district attorney made a motion to revoke appellant’s probation. The matter was continued to January 31, 1958, at which time the probation officer joined in the district attorney’s motion. A hearing was held in which witnesses including the appellant were sworn and testified. Upon the conclusion of this hearing the court revoked its order of probation and sentenced appellant to the state prison for the term prescribed by law.

At the hearing evidence was produced by a police officer that fully supported the trial court’s finding that appellant arranged to and did supply him with a woman for the purpose of prostitution in a hotel of which he was manager. Appellant denied this but the resolution of the conflicting evidence was for the trial court.

Appellant complains that in passing on the motion to revoke his probation the trial court was influenced by his previous criminal record. Having concluded that appellant had violated his probation by the conduct above outlined the trial court was entitled to consider appellant’s previous criminal record as one of the factors in disposing of the motion to revoke his probation.

Before the motion was heard and decided the charge of violating the ordinance had been dismissed for failure to

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bring it to trial in 30 days. Appellant claims that in basing the revocation of his probation on the same facts involved in the criminal charge which had been so dismissed appellant was placed twice in jeopardy for the same offense. The dismissal was a bar to a subsequent prosecution for that offense (Pen. Code, § 1387) but the inquiry here was to determine whether appellant had violated his probation, not to punish him for the substantive offense. He could as well have been charged with violating his probation without filing any complaint for violating the ordinance and the fact that that charge was not prosecuted against him in the municipal court seems immaterial. If he had been acquitted of the charge in the municipal court after a trial it might be argued that that judgment would be res judicata, but he was not acquitted. The dismissal while it technically prevented his trial for the misdemeanor was not res judicata in this collateral inquiry.