In re Clark

In his petition for the issuance of this writ the applicant alleged that he was restrained of his liberty by the sheriff of Los Angeles County, and that his detention was illegal by reason of certain facts. These facts were, that immediately after applicant had been convicted in the superior court of Los Angeles County of the crime of burglary in the second degree, and sentence had been pronounced, the court suspended the execution of the sentence for a period of six months, under certain stated circumstances, which appellant contends amounted to an admission to probation for said period of six months; that thereafter said superior court caused applicant to be arrested and held on a commitment under said judgment for the purpose of causing him to be imprisoned in the state prison, as provided by said judgment. Appellant contends that because the order of suspension of judgment was not revoked within the said period of six months, the court lost its authority to proceed further in execution of the judgment.

The return shows that on February 8> 1924, after Clark had duly entered his plea of guilty of the crime of burglary in the second degree, he was duly sentenced to be punished by imprisonment in the state prison at San Quentin for

The said judgment is the same jiidgment which came before this court for review in the case of People v. Clark et al., 69 Cal. App. 520 [ 231 Pac. 590 ]. In that case the defendant had been convicted of the crime of escape while in the custody of the sheriff at the county road camp. We reversed that judgment upon the ground that the court had no authority to order imprisonment of the defendant in the county jail or road camp. That being so, it was held that the defendant was not guilty of the crime of escape when he left that place of confinement.

In People v. Clark, supra, it was assumed by counsel and by the court that the judgment was free from any legal defect other than that it attempted to impose an unauthorized imprisonment by way of substitution for the substantial part of the judgment which directed that defendant be imprisoned in the state prison. We did not there consider, and we were not asked to consider, any question challenging the authority of the court to suspend the execution of judgment in the manner there attempted—that is to say, without admitting the defendant to probation.

As we said in our former decision above noted, “undoubtedly the court had in mind, in pronouncing this judgment, subdivision a of section 1203 of the Penal Code providing for the suspending of sentence.” According to the record which was before us at that time, the judgment itself, at the end thereof, stated that execution of sentence was suspended, “defendant to be remanded to the custody of the sheriff to work at the county road camp.” Following the construction of section 1203 as found in People v. Mendosa, 178 Cal. 509 , 511 [ 173 Pac. 998 ], we held that “the trial

[1] Although this court, perhaps inadvertently, in People v. Clark, supra, assumed that the court below had authority to suspend execution ■ of sentence without admitting the defendant to probation, we consider that subject open for consideration now. And we are of the opinion that such authority does not exist. In the Mendosa ease the supreme court said: “If the court desires to suspend the execution of the sentence, the only way in which it can legally do so is by proceeding under section 1203 of the Penal Code, and that section expressly provides that in the event of such suspension ‘the court shall place such person on probation and under the charge and supervision of the probation officer of said court, during such suspension.’ The section clearly contemplates that the defendant, while on probation and conforming to the terms thereof, shall be at large and not in confinement.”

[2] Section 1203 of the Penal Code first confers upon the court authority, in the cases to which it applies, “to place the defendant upon probation as hereinafter provided.” The subdivision relating to suspension of imposing of sentence, or of execution thereof, is a part of the process of admitting to probation as authorized by the general provisions of the section. It does not purport and should not be construed to authorize suspension of execution of the sentence except as an incident to the granting of probation, for by implication it declares the opposite intention. Therefore, in order to reach the conclusion that the suspension was Avithin the authority of the court, it must be determined first that the order was, in effect, an order admitting to probation. But in the present. case this cannot be so determined for the two sufficient reasons; first, that the order itself states that the application for probation is denied, and, second, because it attempts to retain the defendant in actual custody. We hold, therefore, that the order suspending execution of judgment in the principal case was void, and that the judgment itself has not been satisfied by the expiration of a term of probation. [3] This being so, there appears to be no reason why the defendant may not be taken into custody and compelled to submit to imprisonment in the state prison as required by the terms of the judgment.

The prisoner is remanded to custody.

Houser, J., and Curtis, J., concurred.