People v. Ottovich

Opinion

CALDECOTT, P. J.

The only issue presented by this appeal is whether the municipal court has the jurisdiction to place a convicted misdemeanant on probation for a period exceeding three years where the maximum time for such sentence of imprisonment that might be pronounced is less than three years.

Penal Code section 1203 a covers the matter under consideration. Section 1203 a provides in relevant part that the municipal courts “shall have power to suspend the imposing or the execution of the sentence, and to make and enforce the terms of probation for a period not to exceed three years; provided, that when the maximum sentence provided by law exceeds three years imprisonment, the period during which sentence may be suspended and terms of probation enforced may be for a longer period than three years, but in such instance, not to exceed the maximum time for which sentence of imprisonment might be pronounced.”

Section 415 of the Penal Code does not provide for a maximum sentence exceeding three years imprisonment, rather it provides for a

[534]

maximum term of 90 days. Under section 1203a, the trial court has authority only to make and enforce a term of probation not to exceed three years.

(Fayad,

v.

Superior Court,

153 Cal.App.2d 79, 84 [313 P.2d 669].)

In

Fayad

v.

Superior Court,

the court cited the general rule regarding probation in misdemeanor cases as follows: “It is our opinion that section 1203 a, dealing with probation for misdemeanors, can and should be construed consistently with the provisions of section 1203.1 and that the maximum term of probation under consecutive misdemeanor sentences is the maximum possible term of sentence but if that maximum is three years or less, probation is limited to three years.”