In re Williams

Opinion

KINGSLEY, J. Petitioner was charged, under the name of A. C. Crosby, with two counts of violation of section 11910 of the Health and Safety Code and one count of violation of section 11530 of the Health and Safety Code. He pled guilty to the count charging a violation of section 11530. When the matter came on for sentence, the trial court, pursuant to para[55]graph (3) of subdivision (b) of section 17 of the Penal Code,1 suspended proceedings, granted him probation and declared the offense to be a misdemeanor. The other two counts were dismissed.

Thereafter it was discovered that, in his interviews with the probation officer, petitioner had not disclosed that he also used the name Williams and that, under that name, he had a long criminal record. On the basis, of that conduct, the trial court made orders which: (1) purported to “vacate” the order of probation; (2) appointed psychiatrists under section 730 of the Evidence Code; (3) adjourned the criminal proceedings, and committed petitioner to the Department of Corrections for examination and report under section 1203.03 of the Penal Code. After an unsuccessful attempt to secure relief by habeas corpus in the trial court, petitioner brought the present petition. We issued an order to show cause. The matter has been briefed. We grant a writ in the terms hereinafter indicated.

(1) In In re Bine (1957) 47 Cal.2d 814 [306 P.2d 445], the Supreme Court said (at p. 817): “Probation is an act of clemency and may be withdrawn if the privilege is abused. An abuse of privilege is shown where a defendant practices a deception upon the court at the time probation is granted. . . .” On the record before us, we cannot say that the trial court erred in finding that petitioner had deceived his, probation officer. That officer’s original report includes the statement that petitioner had denied any arrest record other than one for drunk driving and some traffic tickets. Clearly, this was false. It follows that revocation of his, probation was proper.

(2) However, section 17 of the Penal Code provides that the offense is a misdemeanor “for all purposes,” once any of the provisions of subdivision (b) have been invoked. In People v. Hannon (1971) 5 Cal.3d 330 [96 Cal.Rptr. 35, 486 P.2d 1235], the Supreme Court had before it a case in which a defendant had, been committed to the Youth Authority— a commitment which, under paragraph (2) of subdivision (b) of section 17, [56]