People v. Leach

California Court of Appeal Sep 15, 1937 No. Crim. 3011Published

Before: Wood

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Holding. The court held that a trial court may deny probation based on a defendant's prior felony conviction even if that conviction was not formally pleaded in the information, as probation is an act of grace and not a right.

Issues

Whether a trial court may deny probation based on a prior felony conviction not formally pleaded in the information.
Whether the court had the authority to vacate an order granting probation upon discovering the defendant was ineligible due to a prior felony conviction.

Disposition. affirmed

Quotations verified verbatim against the opinion

“If the court was without authority to grant probation the order of June 15th vacating the former order was proper.”

“Manifestly the legislature did not require that formal pleading be made setting forth the former conviction.”

“Probation is defined as an act of grace and clemency, which may be granted by the court to a seemingly deserving defendant, whereby he may escape the extreme rigors of the penalty imposed by law for the offense of which he stands convicted.”

[526]

WOOD,

J.—Defendant was on May 26, 1937, convicted by a jury of the crime of burglary in the second degree. Judgment was pronounced by which defendant was sentenced to the state penitentiary at San Quentin but the execution of the sentence was suspended by the entry of the following order: ‘1 Execution of sentence is suspended and defendant is placed on probation

for

a period of six years under the following conditions: Defendant must serve the first year of his probationary period in the County Jail. Road camp is recommended. Case is continued to June 2, 1937, at 9:30 A. M. for further disposition. Defendant is remanded.” Thereafter the matter was continued until June 15, 1937, when the following order was made: 1 ‘ Order heretofore made granting probation is vacated and set aside for the reason that the defendant is ineligible for probation. Defendant is remanded to the custody of Sheriff for execution of sentence.” Defendant was not charged in the information with the prior conviction of a felony but upon passing on the application for probation the court had before it the record of the prior conviction of the defendant of the crime of burglary upon which he was placed on probation on September 6, 1933, for the term of three years. Probation was terminated in the prior case on November 26, 1936, and the proceeding was then dismissed.

If the court was without authority to grant probation the order of June 15th vacating the former order was proper.

(People

Superior Court,

136 Cal. App. 541 [28 Pac. (2d) 1076];

People

Hainline,

219 Cal. 532 [28 Pac. (2d) 16, 17].) It is now contended by defendant that the court’s order placing him upon probation was proper for the reason that the prior conviction had not been pleaded in the information. The answer to this contention is disclosed by an examination of section 1203 of the Penal Code and the sections immediately following. It is there provided that upon conviction of a public offense the court may consider an application for probation and may summarily deny it or grant the application at a later time to be fixed; that the matter be heard and determined in the presence of the defendant; that the court must refer the matter to the probation officer “to investigate and to report to the court at a specified time, upon the circumstances surrounding the crime and concerning the

People v. Leach

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WOOD,

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