In Re Kennick

California Court of Appeal Feb 19, 1982 No. Crim. 41144Published

Before: Compton

AI Brief

AI-generated · verify before citing

Holding. The court held that a stay of execution pending appeal applies to the entire probationary judgment, not merely the confinement condition, and that the probationary period does not commence until the issuance of the remittitur. Consequently, the trial court retained jurisdiction to enforce the original probationary terms after the appeal was affirmed.

Issues

Whether the execution of a probationary judgment is stayed in its entirety pending appeal.
Whether a trial court lacks jurisdiction to modify a probationary judgment during the pendency of an appeal when execution of that judgment has been stayed.
When the probationary period commences following an appeal.

Disposition. denied

Quotations verified verbatim against the opinion

“A judgment is an integrated whole and a stay of its execution stays all of its parts unless the court specifies otherwise.”

“A stay of a probationary type judgment stays the running of the probationary term. The period of probation commences to run only after issuance of the remittitur.”

“Since the entire judgment here was suspended pending appeal, the time of probation only began to run at the time of the issuance of the remittitur and the trial court lacked jurisdiction in the interim to modify the judgment.”

Opinion

COMPTON, J.

This petition for habeas corpus was transferred by the Supreme Court to this court and the Sheriff of Los Angeles County was ordered to show cause why the writ should not be granted. We calendared the matter for oral argument. After considering the record and the circumstances of the case we have concluded that the writ should be denied.

Petitioner was convicted in the Superior Court of Los Angeles County of four counts of grand theft. Proceedings were suspended and he was placed on probation for a period of three years on condition that he serve the first year in the county jail.

On the filing of a notice of appeal, petitioner was released on bail of $2,000. Subsequently, the judgment was affirmed by this court. The Supreme Court denied a hearing and the remittitur issued.

Petitioner returned to the superior court whereupon bail was exonerated and the trial court ordered the judgment into execution. Petitioner contends that the three-year probationary period expired prior to the date that the trial court ordered execution of the judgment following its affirmance on appeal. He thus argues that the trial court on that date lacked jurisdiction to enforce the condition that he serve one year in the county jail.

An additional feature of this case is that during the pendency of the appeal, a judge other than the original trial judge, purported to modify the judgment by imposing a misdemeanor sentence terminating probation and dismissing the action pursuant to Penal Code sections 1203.03 and 1203.04.

[962]

The validity of petitioner’s contention and incidentally the validity of the interim attempt at modification of the judgment both turn on the single issue of whether the execution of the judgment was stayed pending appeal.

In essence, the petitioner and the judge who purported to modify the judgment, were of the opinion that only the condition that defendant be incarcerated was stayed and that the other conditions of the probationary order continued in effect. We disagree.

The filing of an appeal doe,g not in and of itself stay the execution of a judgment in criminal proceedings. (Pen. Code, § 1243.) A trial or appellate court may stay the execution of a judgment pending appeal, (Pen. Code, § 1243) and a defendant may be released on bail pending appeal (Pen. Code, § 1272) as a guarantee that he will surrender himself in execution of the judgment upon its being affirmed or in case of a reversal that he will appear and submit to the further orders and processes of the court. (Pen. Code, § 1273.) An order granting probation is a final judgment from which a defendant may appeal. (Pen. Code, § 1237.)

In Re Kennick

AI Brief

COMPTON, J.

More from California Court of Appeal

Related research

AI Brief