Holder v. Superior Court of San Diego Cty.

LAZAR, J. pro tem.

*

Petitioner was convicted of a felony on November 27, 1961, and committed to state prison for the term prescribed by law. At the time of sentence section 1168,

[316]

Penal Code, read as follows: “Every person convicted of a public offense, for which imprisonment in any reformatory or State prison is now prescribed by law shall, unless such convicted person be placed on probation, a new trial granted, or the imposing of sentence suspended, be sentenced to be imprisoned in a State prison, but the court in imposing the sentence shall not fix the term or duration of the period of imprisonment. ’ ’

In 1963 and 1967 the section was amended; a second paragraph was added reading, as amended:

“When a defendant has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, if it is deemed warranted by the diagnostic study and recommendations approved pursuant to Section 5079, the court may recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced.”

In reliance upon the language just quoted petitioner made application to the superior court for probation. The application for probation was heard and denied on August 16, 1968, by minute order reading: “Defendant’s petition for probation under the provisions of P. C. 1168 is argued by counsel, and, by the Court, denied on the ground of lack of retroactivity of said statute. ’ ’

■ We construe the trial court’s order to mean that the court considered itself without jurisdiction to adjudicate petitioner’s application on its merits. This position is asserted by petitioner in his brief, is not denied by respondent, and is borne out by the record which shows: the Department of Corrections in its letter transmitting the diagnostic study to the trial court specifically suggested the trial court might be without jurisdiction to hear the application for probation because the statute was not retroactive in application; the court expressed in a letter to petitioner’s counsel its concern about the point; in response defendant’s counsel submitted a letter memorandum on the subject of the court’s jurisdiction.