People v. Smith

California Court of Appeal May 9, 1985 No. No. D002318Published

Before: Staniforth

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Holding. The trial court retained jurisdiction to impose a stayed custody condition of probation after the original probationary term had expired, because a stay of a probationary condition pending appeal does not allow a defendant to escape that condition simply because the appellate process exceeds the original term.

Issues

Did the trial court lack jurisdiction to impose a stayed custody condition after the expiration of the initial probationary term?
Does a stay of a probationary condition pending appeal prevent the court from enforcing that condition if the appellate process exceeds the original term of probation?

Disposition. affirmed

Quotations verified verbatim against the opinion

“A stay of a probationary-type judgment stays the running of the probationary term so that it does not begin to run until after the remittitur has issued.”

“a defendant does not escape a custody condition of probation which has been stayed pending appeal because the time required for disposition on appeal exceeds the time set for probation.”

“There is no factual impossibility in serving a year of custody during a five-year probationary term and there is nothing invalid about such a condition.”

Opinion

STANIFORTH, J. C. Arnholt Smith was convicted by a jury in May 1979 of two felony counts of tax fraud for the year 1971 (Rev. & Tax. Code, §§ 19405, 19406), two felony counts of tax fraud for the year 1973 (ibid.) and one count of grand theft (Pen. Code, § 487, subd. 1).

[1228]On May 31, 1979, Smith was placed on probation for five years on condition he serve one year in the custody of the sheriff for each of counts two, four and five and he make restitution of $681,000. Smith appealed his conviction.

On September 26, 1979, the trial court stayed the restitution and custody conditions pending appeal but did not stay the probationary term itself.

On March 24, 1984, the probation department sought to have Smith’s probation modified by extending the probationary term for another five years. The modification was sought because Smith’s term was due to expire on May 30, 1984. This court had not yet rendered its decision and the probation department feared the court would lose its jurisdiction over Smith.

On April 30, 1984, the court extended Smith’s formal probation for another five years until May 30, 1989.

This court filed its opinion on May 17, 1984, affirming tax counts one through four as misdemeanor violations of Revenue and Taxation Code section 19401 and affirming the grand theft in count five as a felony. We remanded for resentencing unless the People sought a new trial on the tax count within 30 days of the issuance of the remittitur. (People v. Smith. (1984) 155 Cal.App.3d 1103, 1187-1188, 1198 and fn. 6 [203 Cal.Rptr. 196].) We issued the remittitur on August 21, 1984.

On October 10, 1984, the court sentenced Smith to 365 days in custody of the San Diego County Sheriff with 1 day suspended. The court made it clear it was imposing the one-year custody as provided for in Smith’s initial probation order. Smith surrendered to the custody of the sheriff on November 26, 1984, after making various motions to the superior court and various petitions to this court and the Supreme Court. Smith is due to be released in July 1985.

On appeal, Smith contends the trial court lacked jurisdiction to impose judgment on October 10, 1984, a date after the expiration of his initially imposed probationary term, and the attempted extension of his term was invalid.

People v. Smith

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