People v. Gish

California Court of Appeal Nov 9, 1964 No. Crim. 1663Published

Before: Griffin

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Holding. The court held that the 1957 amendment to Penal Code section 1203.2 is procedural rather than substantive, and therefore the trial court had jurisdiction to set aside a revocation of probation and reinstate probation even after the original probationary period had expired.

Issues

Whether the 1957 amendment to Penal Code section 1203.2 applies to probation granted prior to its enactment.
Whether the trial court had jurisdiction to sentence the defendant after the expiration of the original probationary period.
Whether the limitation of bench warrants to the State of California constituted an unlawful condition of banishment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It appears that the amendment is procedural and not substantive. Rather than increasing the disabilities resulting from a criminal conviction, it benefits a defendant because it permits the court to grant further probation”

“The court had jurisdiction to sentence defendant at the time indicated.”

GRIFFIN, P. J.

On February 8, 1957, defendant-appellant Joseph Gish pleaded guilty to a violation of Vehicle Code, section 503 (theft of a car), now section 10851, a felony, with the possible punishment of one to five years in state

[545]

prison. The trial judge, on February 26, suspended sentence and granted defendant probation for three years, conditioned upon his serving six months in the county jail, making restitution of $250, not crossing the International Border, and reporting monthly to his probation officer.

On March 10, 1958, the probation order was modified, based on a supplemental report of the probation officer and the period of probation was extended for two more years until February 25, 1962, under the same conditions.

On November 9, 1959, a bench warrant for the arrest of defendant (who was then in the Los Angeles County Jail) was issued, ordering him to show cause why probation should not be revoked.

On December 11, 1959, within the five years, the order of probation was again modified to provide that defendant was not to leave San Diego County.

On December 17, 1959, it was again modified to permit defendant to live in Los Angeles County. The other terms of the probation remained the same.

On March 3, 1960, the court issued a bench warrant for the arrest of defendant, with the notation, “to be effective in the State of California only” and ordered him to show cause why probation should not be revoked.

On December 21, 1961, an order was made revoking probation. On September 20, 1963, an order was made setting aside this order and defendant was again placed on probation for three years, i.e., until September 19, 1966, with an added provision that he pay $200 costs of supervision.

On March 26, 1964, a supplemental report was filed and revocation of probation was recommended. On March 27, 1964, probation was revoked and defendant was sentenced to the California Institution for Men at Chino.

Defendant now appeals from this judgment, contending that the trial court lacked jurisdiction to pronounce judgment on March 27,1964, because the amendment to Penal Code, section 1203.2 and the actions of the trial court were ineffective to extend the term of defendant’s probation beyond February 25, 1962.

People v. Gish

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GRIFFIN, P. J.

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