People v. Schwartz

WOOD, J. Defendant pleaded guilty to a charge of violation of section 337a, subdivision 2, of the Penal Code, a felony, which offense is commonly known as bookmaking. On July 20, 1944, upon the hearing of her application for probation, the court suspended proceedings in the case and granted probation for a period of three years upon the conditions that she pay a fine of $100 and “must refrain from gambling or bookmaking and must report regularly to the Probation Department and obey all laws.” On November 29, 1946, the court, in the presence of defendant and her counsel, revoked said order granting probation, and pronounced judgment that defendant be imprisoned in the county jail for six months. Defendant appeals from the judgment.

After probation had been granted the defendant pleaded guilty in another department of the superior court (the date is not shown by the record but it is asserted in appellant’s brief that it was more than two years after probation had been granted) to another and different charge of violation of section 337a of the Penal Code, and the judge in the other department, without referring the matter to the probation department for investigation, granted probation to her on condition that she pay a fine of $500 forthwith. The basis for revoking probation in the present case was the plea of guilty in the other department of the court.

[803]Appellant contends that the judgment is void for the reason that it “was pronounced after the legal period during which the appellant could have been placed on probation upon the charge.” Her argument is that at the time of making the original order the court, by suspending the proceedings, let the crime remain a felony, and that since the period of time for which the court could have granted probation in a felony case was the maximum possible term for which it could have sentenced a defendant in a felony case, and since the maximum possible term for which the court could have sentenced this defendant under section 337a for such felony was imprisonment for one year, the portion of the order granting probation in excess of one year was a nullity, and the judgment pronounced after the expiration of one year was void.

The punishment for violation of section 337a of the Penal Code is “imprisonment in the county jail or state prison for a period of not less than thirty days and not exceeding one year. ’ ’

Section 1203.1 of the Penal Code provides in part: “The court. . . in the order granting probation, may suspend the imposing, or the execution of the sentence and may direct that such suspension may continue for such period of time not exceeding the maximum possible term of such sentence, except as hereinafter set forth, and upon such terms and conditions as it shall determine. The court ... in the order granting probation and as a condition thereof may imprison the defendant in the county jail for a period not exceeding the maximum time fixed by law in the instant case; provided, however, that where the maximum possible term of such sentence is less than two years, then such period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over three years; may fine the defendant in such sum not to exceed the maximum fine provided by law in such case; or may in connection with granting probation, impose either imprisonment in county jail, or fine, or both, or neither; may provide for reparation in proper cases; and may require bonds for the faithful observance and performance of any or all of the conditions of probation.” (Italics added.)