In re Medina

Opinion

BEACH, J. Nature of Proceeding:

In a petition for writ of habeas corpus defendant challenges the power of the superior court to impose additional conditions of probation based on defendant’s committing another crime while the original judgment which granted him probation was on appeal. We deny the petition.

Procedural Facts:

Upon conviction of a crime, defendant was placed on probation for four years (terminating in 1985). One of the conditions of probation was that defendant serve five months in county jail. He appealed the judgment. He was released on bail pending appeal.1 While free on bail and pending appeal defendant was convicted of the crime commonly described as “drunk driving.” Eventually the judgment on the first conviction was affirmed and remittitur filed. Defen[564]dant then returned to superior court and was remanded to jail to serve the time originally imposed as a condition of probation. Before defendant completed serving the five-month jail term on the original offense, the superior court was informed of the drunk-driving conviction and a probation violation hearing was held.2 Defendant admitted the drunk driving conviction but argued, as he does here, that he could not be found in violation of probation because, as he claims, he was not “on probation” while out on bail pending appeal. He relies on In re Kennick (1982) 128 Cal.App.3d 959 [180 Cal.Rptr. 731]. The trial court rejected his claim. It thereupon revoked the probation and reinstated it on condition that defendant serve an additional six months in jail.

Defendant’s reliance on Kennick is misplaced. The holding of Kennick is totally inapplicable here. In Kennick the defendant claimed that service of jail time, a condition of his probation, did not have to be met because the time it took to appeal his case exceeded the length of time of his probation. We rejected that contention. But whether or not probation was or was not running or was stayed or was not stayed is not the issue in this case. The issue here boils down simply to these two questions: (1) at the time of the modification of probation, did the superior court have jurisdiction and discretion to modify?; and (2) did it have facts before it on which it could exercise such authority and discretion? The answer to both questions is yes.

A defendant placed on probation for a period of time is “at liberty” only as long as he behaves in accordance with the terms thereof and does not again violate the law, regardless of whether or not such a requirement is expressly set forth as a condition of probation. If before his probation term expires the defendant misbehaves by breaking the law, that misbehavior may be brought to the court’s attention and the court may bring the defendant to court, revoke and reinstate, or otherwise modify the probation originally imposed. The court may for good cause change the term of probation. (Pen. Code, §§ 1203.1, 1203.2, 1203.3.) A defendant does not have a vested, unchangeable, cast-iron right to the original terms of probation, once pronounced, and irrespective of his conduct before or during the time of probation.