People v. Sapienzo

TYLER, P. J.

This is an appeal from an order denying a motion for a new trial and from an order of the court revoking its prior order granting appellant probation, and from the judgment /which was thereupon rendered.

The defendant was on January 10, 1922, duly arraigned upon a charge of assault with a deadly. weapon. He pleaded guilty at that time to the charge, and the date for pronouncing judgment was fixed for January 28, 1922. An application for probation was made, and the matter was referred to the probation officer on the same day. Thereafter and from time to time at defendant’s request imposition of sentence was continued until finally upon April 1, 1922, the court made an order releasing the defendant on probation. The order provided that defendant be released for ten years on condition that he give a bond in the sum of one thousand dollars and that he remain ip. Fresno until April 10, 1922, and if released on bond that he report to the probation officer during such period, and unless detained that he go east and remain, out of California during the term of his probation.

Subsequently the district attorney served notice upon defendant and his counsel that he would on July 8, 1922, move the trial court to revoke the order of probation.

The motion was based upon four affidavits of different persons, which indicated that the defendant had committed the crime of arson. At the hearing the defendant made no counter-showing, and the order of probation was thereupon revoked.

Defendant appeals from such order, and contends that the court was without jurisdiction to revoke its former order and pronounce judgment upon him over his objection for the reason that no prior judgment had ever been pronounced or rendered against him, as provided by section 1191 of the Penal Code, and that no order had ever been made suspending the same; that the time within which judgment

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might have been pronounced had expired when sentence was suspended; and it is claimed, therefore, that the court was without jurisdiction to pronounce judgment, and this court must in consequence grant a new trial by reason of section 1202 of the Penal Code. It is further urged that the court below abused its discretion in revoking the probation of defendant without any evidence showing the violation of the terms of probation.