People v. Thornton

[326]

Opinion

DRAPER, P., J.

Does admission to probation upon a felony conviction require that the defendant be granted probation after reversal of the judgment and conviction upon retrial? That is the issue presented by this appeal.

In 1968, a jury convicted defendant of grand theft. Imposition of sentence was suspended, and he was admitted to probation for three years on condition he serve eight months in county jail and make restitution to each of his victims. He appealed and the judgment was reversed May 23 (1 Crim. No. 7149, unpublished) for error in instructions. Upon retrial, a jury again found him guilty. He was then sentenced to state prison. He now asserts that the greater punishment after reversal and retrial is impermissible.

In 1963, California first adopted the rule that a defendant who has been convicted, appeals, and secures reversal, cannot be subjected to a greater penalty when reconvicted, upon his second trial, of the same offense in the same degree

(People

v.

Henderson,

60 Cal.2d 482 [35 Cal.Rptr. 77, 386 P.2d 677]). In that case, defendant had been sentenced to life imprisonment upon his guilty plea, but the death penalty was imposed after trial following reversal. In 1967 the rule was extended to bar consecutive sentences after reversal of the first judgment which had made the sentences concurrent

(People

v.

Ali,

66 Cal.2d 277 [57 Cal.Rptr. 348, 424 P.2d 932]). Breadth of the rule is demonstrated in a 1965 decision

(In re Ferguson,

233 Cal.App.2d 79 [43 Cal.Rptr. 325]). There defendant had been convicted of an offense punishable by incarceration in either county jail or state prison. At the first trial, the jury fixed a county jail term as lire penalty. New trial was granted, and at retrial a jury ordered confinement in state prison. The court held that defendant could be compelled to serve only the lesser county jail sentence. The theory of these decisions is that “a defendant should not be required to risk being given greater punishment on a retrial for the privilege of exercising his right to appeal”