People v. Amsbary

Opinion

THOMPSON, J. In this appeal from an order of the trial court revoking probation, appellant contends that the court lacked jurisdiction to enter the order because his period of probation had expired before the hearing to revoke it.1 Respondent, prosecution, admits that appellant’s [77]period of probation had expired before the hearing on revocation of probation but contends the running of the probationary period was “tolled” because of earlier proceedings conducted in violation of the procedural guarantees set out in Morrissey v. Brewer, 408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593], and People v. Vickers, 8 Cal.3d 451 [105 Cal.Rptr. 305, 503 P.2d 1313], Respondent contends, also, that appellant is estopped to argue lack of jurisdiction by reason of the termination of the period of probation because of his delay in petitioning for habeas corpus to call attention to the Morrissey-Brewer violation. Concluding that respondent’s first contention is foreclosed by People v. Andre, 37 Cal.App.3d 516 [112 Cal.Rptr. 438], and that the record does not support respondent’s argument of estoppel, we reverse the order revoking probation.

On June 16, 1969, appellant entered a plea of guilty of possession of marijuana for sale. On July 7, 1969, he was sentenced to state prison for the term prescribed by law. Execution of the sentence was suspended and appellant was placed upon probation for a period of three years conditioned upon his serving six months in the county jail, his abstinence from narcotics, and his obedience of all laws. On May 13, 1971, appellant was found in violation of probation. Probation was extended for one year and appellant reinstated to it on the original terms plus the added condition that he cooperate in psychiatric treatment. On October 4, 1971, appellant was found in violation of the terms of probation but probation was reinstated upon the original terms and conditions. On August 16, 1972, the criminal proceedings were suspended and appellant was committed to Metropolitan State Hospital pursuant to Penal Code section 1368 as unable to comprehend the nature of the proceedings against him or to cooperate in his defense. On January 12, 1973, Metropolitan State Hospital reported that appellant had regained his sanity. On February 16, 1973, the trial court, without complying with the Morrissey-Vickers rule, revoked appellant’s probation and continued the matter for sentencing. On May 23, 1973, again not complying with the requirements of Morrissey- Vickers, the court ordered “probation denied” and sentenced appellant to state prison.