People v. Blakeman

WOOD (Fred B.), Acting P. J.

Upon an information charging violation of section 702, Welfare and Institutions Code, defendant pleaded guilty to the lesser charge of assault and battery and proposed that as part of any sentence he would leave the community. It was adjudged that he pay a fine of $500 and be imprisoned one year in the county jail, providing that the imposing of the jail sentence be suspended upon the condition that he absent himself from the county.

Ten months later, after a hearing, the trial court found that the defendant had violated said condition and, for that reason, revoked probation by terminating the suspension of sentence.

In support of his appeal, defendant says the order revoking probation was void because (1) the condition imposing banishment was void and .(2) the order of revocation was made after the probationary period had expired.

(1)

Was it error to revolee probation on the ground that defendant violated the condition of probation that defendant absent himself from the countyf Yes.

It was beyond the power of the court to impose banishment as a condition of probation. The provision therefor was a void and separable part of the order granting probation. Revocation of probation upon the sole ground of violation of such a void provision was without authority in law and should be reversed.

In

In re Scarborough,

76 Cal.App.2d 648 [173 P.2d 825], an order suspending sentence on condition of banishment for two years was deemed the granting of probation upon a void condition. It was void because there was no statutory authority for it and banishment is proscribed by the fundamental policy of not permitting one political division to dump undesirable persons upon another. Said the court: “The same principle

[598]

which prohibits the banishment of a criminal from a state or from the United States applies with equal force to a county or city. The old Roman custom of ostracizing a citizen has not been adopted in the United States. The so-called ‘floating sentence,’ too frequently resorted to in some inferior courts, falls in the same category. There is no statute in California authorizing such judgments.” (P. 650. See also the authorities cited on p. 649 of 76 Cal.App.2d, and 15 Am.Jur. 112, Crim. Law, § 453.) This void condition was deemed separable from other provisions of the order. Accordingly, defendant was entitled to his freedom upon probation until revocation of probation for lawful reasons.