People v. Schultz

DRAPER, P. J.

Convicted of pandering (Pen. Code, § 266i), defendant was sentenced to prison. Execution of sentence was suspended and she was admitted to probation on condition, among others, that she serve one year in county jail. She appealed, and was released on bail pending appellate determination. The judgment was affirmed

(People

v.

Schultz,

238 Cal.App.2d 804 [48 Cal.Rptr. 328]) and defendant commenced service of the one year in jail. A new charge had been filed against her charging that she again engaged in pandering after the trial court judgment and before remittitur. The district attorney moved to revoke probation and, after hearing, the motion was granted. Defendant was committed to prison

[877]

under the judgment which had been entered in January 1965, and the new charge was dismissed. Defendant appeals from the order of revocation.

The ground of revocation was defendant’s return to pandering after her admission to probation. But, argues defendant, this occurred during pendency of her appeal. Since she was free on bail during this time, she had not served the one year in county jail which was a “condition” to her probation. Thus, she says, she was not on probation at all, and no act of hers before she had served the year could be a violation of probation terms, or a ground for revocation.

The contention has been rejected

(People

v.

Jennings,

129 Cal.App.2d 120 [276 P.2d 124]

;

see also

In re Osslo, 51

Cal.2d 371, 377, fn. 6, 380 [334 P.2d 1] ; Pen. Code, § 1243). Moreover, the argument defeats itself. The court had no power to suspend execution of sentence except as an incident to granting probation