In re Walden

BARNARD, P. J. This is an appeal from an order granting a petition for a writ of habeas corpus and discharging the petitioner.

The petitioner was found guilty of manslaughter, a misdemeanor, without gross negligence. On January 10, 1947, his application for probation was granted and he was released upon the conditions that he violate no laws, that he refrain from the use of intoxicating liquors, and that he refrain from operating a motor vehicle during the two-year term of probation.

On January 7, 1949, an affidavit was filed in the supérior court alleging that he had violated the terms of his probation by driving a motor vehicle without a driver’s license and while his license to drive was revoked, and that he had failed to make a boulevard stop. The court issued a bench warrant for his arrest, and a hearing was had on January 8, 1949. After hearing evidence, both for the People and the petitioner, the court made an order finding the allegations of this affidavit to be true, and further ordering that the probation theretofore granted to the petitioner be revoked. Thereupon, and on the same day, the court pronounced judgment sentencing him to imprisonment in the county jail for one year, with the further provision that the last six months of that term be suspended.

On January 13, 1949, a petition for a writ' of habeas corpus was filed, alleging that the detention and imprisonment of the petitioner was illegal in that the court was without jurisdiction to issue its order of commitment because the court or the clerk had failed, prior to making the order revoking probation and pronouncing judgment, to notify the probation officer in writing of the court’s intention to revoke, modify or change the order of probation theretofore made. A preliminary writ was issued and a hearing was had on January 15, 1949. On January 25, 1949, an order was entered finding that no written notice was given by the court or clerk to the probation officer, as provided by section 1203.3 of the Penal Code, granting the petition for a writ of habeas corpus, and ordering that the petitioner be discharged. In an opinion filed, the court expressed the opinion “that in all cases no order can be made revoking, modifying or changing a prior order of probation, unless prior thereto, notice is given to the probation officer of the intention to revoke, modify or change. ’ ’ ■ This appeal followed.

[863]The sole question presented is whether written notice to the probation officer, pursuant to section 1203.3 of the Penal Code, was essential in such a case as this before the court could revoke a prior order granting probation and proceed to pronounce judgment, as was here done.