People v. Miller

California Court of Appeal Nov 2, 1960 No. Crim. 3797Published

Before: Shoemaker

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Holding. The trial court did not abuse its discretion in denying probation after remand, as the court properly considered the probation report and was not required to obtain a new report or explain its discretionary reasoning.

Issues

Whether the trial court abused its discretion in denying probation without determining if the defendant was armed with a deadly weapon.
Whether the denial of probation constituted an arbitrary exercise of discretion violating due process.
Whether the trial court was required to obtain a current probation report upon remand.

Disposition. affirmed

Quotations verified verbatim against the opinion

“probation is not an absolute right to which a convicted person is entitled, but it is an act of grace and clemency on the part of the court”

“There is no requirement that a judge explain the basis of discretionary action.”

“It does not appear to us that a new and current probation report is required under the circumstances of this ease.”

SHOEMAKER, J.

This is an appeal by defendant Ella Mae Miller from the judgment of the trial court after remand by the Supreme Court in the case of

People

Wade,

53 Cal.2d 322 [1 Cal.Rptr. 683, 348 P.2d 116]. Upon her original trial defendant Ella Mae Miller pleaded guilty to attempted robbery in the first degree and murder in the first degree. The cause was referred to the probation officer for his action, who filed his report, and the matter then came on for pronouncement of judgment and consideration of the motion for probation. The court denied probation and sentenced defendant to the state prison for life. Defendant appealed and the Supreme Court reversed the judgment and stated at page 339: “ [A]s to defendant Miller, the order denying a new trial is affirmed. Since the record discloses that the trial court, without considering the merits of the application for probation, erroneously determined that she was not eligible for probation, the judgment as to her is reversed, and the cause remanded for further proceedings in accordance with law, and with specific directions to the trial court to entertain the application for probation and grant or deny the same as may appear proper under all the circumstances.

[36]

At the hearing on the remand held February 17, 1960, the trial court again denied defendant’s motion for probation and pronounced judgment sentencing her to imprisonment in the state prison for life.

Defendant’s first contention is that the trial court abused its discretion in refusing her probation without first determining whether the statutory requirements for probation were present; that is, whether or not she had been armed with a deadly weapon at the time of the commission of the felony. This would have been an idle act on the part of the trial court for the matter had been determined by the Supreme Court when it stated that defendant was eligible for probation and remanded the case for consideration of probation.

(People

Wade, supra,

People v. Miller

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SHOEMAKER, J.

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