People v. Turner

COUGHLIN, J.

The issue on this appeal concerns the right of the above-named defendant, after termination of his period of probation, to an order permitting him to withdraw his plea of guilty and enter a plea of not guilty, and dismissing the accusations against' him, as required by section 1203.4 of the Penal Code, which provides in part as follows:

“Every defendant who has fulfilled the conditions of his probation for the entire period thereof, . . . shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; . . . and . . . the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. ...”

The defendant, who is the appellant herein, by information was charged with a violation of section 337a, subdivision 2, of the Penal Code, i.e., keeping or occupying a place with

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paraphernalia for recording bets; entered a plea of guilty thereto; and applied for probation. The probation officer filed a report, as required by law, and thereafter the court granted the defendant’s application for probation; the term thereof was set at three years; and the conditions thereof included the following: to abstain from violating any law and from engaging in any criminal or unlawful practices; not to associate with bookmakers or gamblers; and to conduct himself in all respects as a reputable and law-abiding citizen.

The probation order was made on July 29, 1957. Fourteen months later, i.e., on October 24, 1958, the probation officer filed a supplemental report which contained information supporting the conclusion that the defendant had been involved in gambling activities and recommended that he be ordered to show cause why his probation should not be revoked for failure to comply with its terms. A hearing followed the filing of this report at which the court indicated its belief that the defendant had violated the law, but continued him on probation, prescribing additional terms. In April 1960 the defendant moved that he be discharged from probation; the probation officer filed a report in connection therewith; a hearing was had thereon; and the motion was denied.