People v. Hubert

FILES, J.

This is an appeal taken by the defendant, presently in federal custody, from judgments of the superior court following revocation of probation in two cases.

In January 1951 defendant pleaded guilty to one count of forgery and one count of burglary, fixed at burglary second degree. On February 7, 1951, in both cases, it was ordered that probation be granted for five years, the defendant to spend the first year in the county jail (to run concurrently). Other counts in each information were dismissed.

On April 2, 1954, probation was revoked in both eases and a bench warrant was issued. Although the record indicates a hearing was held, it does not indicate whether defendant was present in person or by counsel. Defendant’s written memorandum to this court states that he was in “McNeil Federal Prison” from March 1954 until October 1958, following a conviction in the federal court for bank robbery. For purposes of this decision we assume that he was in a federal prison during the time stated.

In May 1961 defendant was in the Los Angeles County Jail, being held for the United States marshal. It appears that prior to May 12, 1961, defendant had violated the terms of his federal parole in some manner and as of that date was about to be returned to a federal prison as a parole violator. The District Attorney of Los Angeles County then obtained a writ of

habeas corpus ad prosequendum

whereby defendant was produced in the superior court for a hearing on probation and sentence. On May 12, 1961, a hearing was held, defendant being present in person and represented by the public defender, at which time defendant was sentenced to state prison for the term prescribed by law in both the burglary ease and the forgery case, these sentences to run concurrently with each other and consecutively to federal time owing.

Defendant has appealed on these grounds: “(1) that my constitutional rights were violated, and (2) that the present sentences are not in the best interests of justice nor the best for the community.”

It is well settled that probation may be revoked during the probationary period without defendant’s being present or represented by counsel.

(In re Davis,

37 Cal.2d 872 [236 P.2d 579].) If probation is revoked during the probationary period, defendant may then be sentenced at a later