People v. Crappa

PINCH, P. J.

The defendant was charged with the crime of grand larceny, alleged to have been committed on the fourth day of December, 1916. He was arraigned on the ninth day of December, 1916, and entered a plea of ■guilty. December 29, 1916, he was admitted to probation for a term of ten years. April 11, 1925, the order grant

[261]

ing probation was revoked and the court entered judgment “that the said Prank Crappa be punished by imprisonment at San Quentin in the State Prison of the State of California, for the term of not less than the minimum and no greater than the maximum time provided by law.” This appeal is from the judgment.

Appellant contends that “the trial judge who revoked the probation of the defendant and imposed sentence was absolutely disqualified to act, since, as district attorney, he had previously represented the plaintiff ... in the same case.” Judge Murray, who revoked the order granting probation and sentenced defendant to imprisonment, was district attorney of Madera County at the time the information was filed. As such district attorney he appeared for the People at the arraignment and at the hearing of defendant’s application for probation. “No justice, judge, or justice of the peace shall sit or act ... in any action or proceeding, . . . when in the action or proceeding, or in any previous action or proceeding involving any of the same issues, he has been attorney or counsel for either party.” (Code Civ. Proc., sec. 170.) This provision is too plain to admit of controversy, and the disqualification of the trial judge is clear.

The crime charged was committed prior to the enactment of the indeterminate sentence law (Penal Code, sec. 1168) and, therefore, the judgment is-void.

(People

v.

Booth,

37 Cal. App. 650 [174 Pac. 685].)

Upon the going down of the

remittitur

herein, the question of whether the order admitting defendant to probation shall be revoked and, if so, the term of imprisonment to be imposed must be determined by a judge who is not disqualified to act in the matter.