People v. Carr

[443]

Opinion

BROWN (H. C.), J.

Defendant Marion A. Carr appeals from a judgment sentencing him to prison following an order revoking probation.

On September 14, 1967, appellant pleaded guilty in case No. 70344 to a violation of Penal Code section 487 (theft) and in case No. 70316 to a violation of Penal Code section 211 (robbery, second degree). He was sentenced in both cases to state prison for the term provided by law, execution of sentences was suspended and appellant was placed on probation for three years subject to a six-month confinement in county jail. The sentence in case No. 70344 was ordered to run concurrently with sentence imposed in case No. 70316.

On July 1, 1968, appellant was charged in case No. 72588 with two new offenses: Count I, violation of Penal Code section 459 (burglary) and count II, violation of Vehicle Code section 10851 (vehicle theft). After his plea of guilty, appellant was sentenced to state prison, execution of sentence was suspended subject to three years’ probation with one year in county jail. Sentence on each count was ordered to run concurrently.

In December 1968, the district attorney moved to revoke probation in all three actions referred to above, 72588, 70344 and 70316, apparently because of disturbances in the county jail. Judge Neubarth indicated that he would act on case No. 70316 and “let the other two stand.” The minutes of December 20, 1968, indicate that the matter in 72588 and 70344 was ordered “off calendar.” Appellant was committed to the California Youth Authority on January 15, 1969, and remained there until paroled on September 23, 1970.

In June 1971, the district attorney moved to revoke probation in case No. 72588, the appellant having been arrested and charged with robbery, assault with a deadly weapon and resisting arrest. A hearing on revocation was held on June 23, 1971. Judgments revoking probation on both counts of No. 72588, burglary and vehicle theft, were entered on July 9, 1971, and sentences were ordered to be served concurrently.

We agree with appellant’s contention that the court did not have jurisdiction on July 9, 1971 to revoke probation in case No. 72588, having lost jurisdiction by operation of Penal Code section 1203.2a upon failure to revoke probation in January 1969.