Wetteland v. Superior Court

McCOY, J. pro tern.*-This is a proceeding to prohibit the trial court from committing petitioner to California Youth Authority following the revocation of his probation.

The facts are undisputed. In August 1965 the petitioner pleaded guilty to a violation of section 459, Penal Code, and the court determined that he was guilty of second degree burglary. On September 10, 1965, he was sentenced to serve 180 days in the county jail. Execution of this sentence was suspended and petitioner was placed on probation for two years. On March 21, 1966, he was found to be in violation of probation and probation was revoked and a bench warrant was issued. On January 30, 1967, petitioner appeared in the respondent court on the warrant, having been extradited from Minnesota.

After several continuances, petitioner again appeared in court on March 22, 1967, and asked the court to again place him on probation or to allow the 180-day judgment to go into effect and give him credit for time served on other charges in Minnesota and in California. The court then advised petitioner that if the court did not place him on probation the court would send him to the Youth Authority. The matter was then continued to April 11 and petitioner was released on bail.

On April 11 the court refused to reinstate probation and stated that petitioner would be sent to the Youth Authority, [609]remanded the petitioner, exonerated his bail, referred him to the Youth Authority for acceptance and continued the matter to April 25. Petitioner does not want to go to the Youth Authority and contends that the trial court has no jurisdiction to commit him to the authority. We are informed by the court that the Youth Authority has agreed to accept petitioner, but that the court has stayed all further proceedings against him pending the determination of his petition for a writ of prohibition.

It is the contention of petitioner that, in the circumstances of this case, the respondent court has no jurisdiction to commit him to the Youth Authority and that under the provisions of section 1203.2, Penal Code, the court can only allow the original judgment to go into effect or again place him on probation. We agree.

Section 1203.2, Penal Code, provides in part that upon revocation and termination of probation previously granted “the court may, if the sentence has been suspended, pronounce judgment after said suspension of the sentence for any time within the longest period for which the defendant might have been sentenced, but if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke such suspension, whereupon the judgment shall be in full force and effect, and the person shall be delivered over to the proper officer to serve his sentence, less any credits herein provided for. ”