People v. Jennings

California Court of Appeal Nov 22, 1954 No. Crim. 5212Published

Before: Wood (Parker)

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Holding. The court held that the trial court had jurisdiction to revoke probation based on the defendant's conduct during the pendency of an appeal and that there is no constitutional or statutory right to a hearing preceding the revocation of probation.

Issues

Whether the trial court had jurisdiction to revoke probation for conduct occurring while an appeal was pending.
Whether the defendant was entitled to a formal hearing prior to the revocation of probation.

Disposition. Judgment affirmed; appeal from order revoking probation dismissed.

Quotations verified verbatim against the opinion

“Probation is not a matter of right; it is an act of clemency, the granting and revocation of which are within the sound discretion of the trial court.”

“[T]here is neither a constitutional nor a statutory right to notice and hearing preceding revocation of probation.”

[121]

WOOD (Parker), J.

William H. Acason and one Jennings were charged in Count I of an amended information (No. 150845) with issuing a check without sufficient funds on July 11, 1952. They were charged in seven other counts therein with grand theft of sums of money during the period of May 5, 1952, to July 17, 1952. They were charged further, in another count, with criminal conspiracy to defraud by criminal means and to commit grand theft during said period. On November 12,1952, they pleaded guilty as charged in Count I and not guilty as charged in the other counts. The court set a date for hearing defendants’ applications for probation and for pronouncing judgment as to Count I, and for disposition of the other counts.

On January 19, 1953, defendant Acason, at the hearing on his application for probation (as to Count I), made a motion to withdraw his plea of guilty and to enter a plea of not guilty. The motion was denied on said January 19. As to Acason, proceedings were suspended as to Count I, and probation was. granted for five years under the conditions that he serve six months of said period in the county jail, that he make restitution, and that he must not violate any law. On motion of the deputy district attorney other counts of the amended information were dismissed as to Acason.

On January 26, 1953, an order to show cause was issued directing the district attorney to show cause why defendant Acason should not be permitted to withdraw his plea of guilty and substitute a plea of not guilty. The matter was submitted upon affidavits, was heard and argued; and defendant’s motion was denied. On February 10, 1953, Acason appealed from the order denying his motion to withdraw his plea of guilty. Said order was affirmed

(People

v. Jennings, 121 Cal.App.2d 531 [263 P.2d 37]) and the remittitur was filed on December 29, 1953. On January 4, 1954, appellant was remanded to the custody of the sheriff to serve the jail sentence which was imposed as a condition of probation.

After probation had been granted, and while said appeal from the order denying Acason’s motion to withdraw his plea of guilty was pending, he was charged in another information (No. 160073) with issuing checks without sufficient funds (in three counts), and in a fourth count he was charged with grand theft committed on June 1, 1953. As to Count IV, he pleaded guilty to petty theft, an offense included in the offense charged. Hearing upon his application for probation, as to Count IV, was set for March 1, 1954. Hear

People v. Jennings

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