People v. Causey

California Court of Appeal Nov 10, 1964 No. Crim. 9923Published

Before: Kingsley

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Holding. The court held that a trial court retains jurisdiction to consider an application for probation after a conviction is affirmed on appeal, provided execution of the sentence has not begun, and that such consideration must include a current probation report as mandated by statute.

Issues

Whether an order denying probation after a judgment of conviction is appealable.
Whether a trial court retains jurisdiction to grant probation after a conviction is affirmed on appeal.
Whether a trial court is required to obtain and consider a current probation report when ruling on a post-judgment application for probation.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“As long as the execution of the sentence has not begun, the trial court retains jurisdiction over the defendant and has power to receive and act on an application for probation, even after an affirmance on appeal.”

“Since no current report was before the court, it was error to act on the request for probation until one had been ordered, received, read and considered.”

KINGSLEY, J.

Appellant was convicted of grand theft. He appealed, and the conviction was affirmed.

(People

Causey

(1963) 220 Cal.App.2d 641 [34 Cal.Rptr. 43].) When

[577]

the remittitur on appeal was filed in the trial court, appellant, the execution of his sentence having been stayed pending the appeal, filed a motion “(1) for an order vacating the judgment and sentence pronounced or imposed upon the defendant, and (2) for an order granting defendant probation without confinement, upon such terms and conditions as the court shall determine, and (3) for an order vacating judgment or order of commitment. ’ ’ After argument, that application was denied by the trial court on December 3, 1963; the court granted a stay of execution which, as subsequently extended, ran until January 31, 1964. In presenting the motion, appellant relied on the matters then in the court file, including the original probation report, by then some two years and three months old. No request for a current report was then made, although the appellant did seek to introduce a tape recording of a witness (then deceased) contradictory of testimony adverse to appellant in his trial. The offer was rejected by the court.

On December 11, 1963, appellant filed a notice of a new motion, seeking similar relief, in which, for the first time, he requested that the court order a new and current probation report. Although the record shows no action on this application, appellant’s counsel states in his brief (and the statement is not denied) that the court allowed the application to be filed but orally and summarily denied it in toto.

On December 12, 1963, appellant filed a notice of appeal from the order of December 3, 1963.

On January 27, 1964, appellant presented to the trial court a third, written, motion for an order staying execution. The motion was denied. On the same day, appellant filed a written application which renewed his request filed on December 11, 1963. No action seems ever to have been taken on this application. However, on January 28, 1964, appellant noticed an appeal from the

People v. Causey

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KINGSLEY, J.

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