People v. Bagley

PIERCE, P. J. Defendant appeals from an "order dated April 29, 1963, revoking probation and remanding defendant to the sheriff to serve a six-month sentence theretofore imposed.

Although the sequence of events began with the imposition [810]of a 60-day sentence upon appellant for being drunk in a public place and the total of days served in jail to date under sentences (or as a condition to probation) by defendant has been nearly 10 months, there is no merit to the appeal. Appellant’s original offense was only the first of a series.

Appellant contends the trial court abused its discretion in revoking probation under the following facts:

After having served 19 days of the sentence mentioned above defendant escaped, was apprehended, and pleaded guilty to a charge of escape. On October 11, 1961, he was granted probation, for a period of five years, among the conditions of which were (1) that he be kept in the county jail for six months, (2) that he pay a $250 fine in monthly installments to be arranged with the probation officer, (3) that he advise the probation officer monthly as to his whereabouts (residence, changes of residence, places of employment). Appellant served six months in the county jail. He was released from custody March 28,1962.

Thereafter he made no reports to the probation officer, made no payments on the fine of $250. A bench warrant was issued and appellant was arrested December 21, 1962, and brought before Judge Stoll. His excuse for violation of probation was that he had not received a copy of the probation order. The judge reinstated the probation.

On January 28, 1963, appellant was back in court. He had personally prepared a habeas corpus petition but, appearing before Judge Steel, he was represented by counsel (as he had been at all times previously). It appeared he had been arrested in San Jose on the warrant previously issued which had been canceled. Judge. Steel denied habeas corpus but on February 1, 1963, pronounced sentence of six months in the county jail and suspended execution, granting two years’ probation, one of the conditions of which was that appellant was required to pay the fine previously imposed at the rate of $50 per month. He was also required to report to the probation officer weekly either by letter, phone or personally for the first six weeks. At this time the judge stated: “ [I]f you live up to it you will have nothing more to concern you and at the end of the two-year period, or sooner if the court sees fit, you may come back into this court, withdraw your plea of guilty, enter a plea of not guilty and be relieved of any future penalties. On the other hand, you understand that if you violate any provision of this probation, and I don’t want any alibis or anything else on that, you will