People v. Johnson

FINLEY, J. pro tern.

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Defendant has appealed from an order of the trial court denying an application he made therein under the provisions of section 1203.4 of the Penal Code.

On September 6, 1950, an information was filed in the Superior Court for Merced County charging defendant with a violation of section 501 of the California Vehicle Code, a felony. Defendant pleaded not guilty, and after trial before the court sitting without a jury, he was found guilty as charged. Application for probation was made and granted. After his probationary period had expired, defendant, on October 7, 1954, petitioned the court for an order under

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the provisions of section 1203.4 of the Penal Code. In the petition he alleged that he had successfully completed his probationary period on January 2, 1954, and prayed that the information and finding of guilt by the trial court be set aside. A hearing on the petition was held, at which time the trial court, over defendant’s objection, admitted and considered evidence concerning a subsequent violation by defendant of the provisions of section 501 of the Vehicle Code occurring on August 12, 1954. Defendant offered no opposing evidence but did offer evidence, which was not refuted, that he had successfully completed his term of probation on January 2, 1954, some seven months prior to the August 12, 1954, violation.

Two questions are presented for determination herein. The first: Under the provisions of section 1237 of the Penal Code and the circumstances of this case, is the order granting probation to be deemed a final judgment so that, under subdivision 3 of the section, an appeal would lie from the order denying defendant’s petition to have the information and finding of guilt set aside as being an “order made after judgment, affecting the substantial rights” of appellant? The second question: At the hearing on defendant’s petition, did the trial court, in passing upon the petition, properly admit and consider evidence of a law violation occurring subsequent to the successful termination of the probationary period which, had it occurred within that period, would have constituted a violation ?

With reference to the first question, respondent argues that since an order revoking probation has been held not to be an appealable order prior to the pronouncement of judgment