In Re Oxidean

SPARKS, J. pro tem.

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Petitioner, who is imprisoned in the Ventura County jail, seeks a writ of habeas corpus “alleging the Superior Court, California, Ventura California with default in omission of duty as required by law & malicious prosecution.” Specifications set forth in his petition, filed in propria persona, are: (1) that although he was eligible for probation no reference was made to the probation officer in his case prior to the pronouncement of judgment, as required by section 1203 of the Penal Code; (2) that a eo

[816]

defendant with equal participation in the crimes of which petitioner was convicted was given a shorter sentence. Petitioner seeks to he recalled into court for consideration of modification of judgment.

The judgment on conviction as exemplified in the return filed herein by the attorney general, shows that petitioner, being represented by counsel, entered his pleas of guilty to violation of section 459 of the Penal Code, found by the court to be burglary in the second degree; and to violation of section 487 of the Penal Code, grand theft. He was sentenced on the first charge to one year in a county jail, the first portion of which was ordered served in the Los Angeles county jail “until such time as he has completed sentence in said jail for a prior offense, and the balance of said term to be spent in the Ventura County jail.” On the grand theft count petitioner was sentenced to a term of six months in the Ventura County jail, the latter sentence to run consecutively with that of the first.

It is conceded that prior to pronouncing judgment upon petitioner, the trial court did not refer the matter to a probation officer of Ventura County for investigation and written report as required by section 1203 of the Penal Code. It is contended, however, that petitioner, in open court and while being represented by his counsel, waived the right to apply for probation or presentence report and requested pronouncement of judgment and sentence forthwith. The judgment on conviction reads: “Defendant moves the Court to withdraw his prior plea, whereupon, said motion is granted, and defendant withdraws his plea of ‘not guilty’ to Counts I and II, and enters his plea of ‘guilty’ to the offense of violation of Section 459 of the Penal Code, as charged in Count I, found to be second degree, and ‘guilty’ to the offense of violation of Section 487 of the Penal Code, as charged in Count II of the Information, and waiving his rights to apply for probation or a pre-sentence report, and requesting pronouncement of judgment and sentence forthwith, defendant is duly arraigned for judgment, shows no legal cause why judgment should not be pronounced against him, ...”