People v. Ramos

On an information charging defendant with the crime of burglary he pleaded guilty and was permitted to file an application for probation. Plea of guilty was entered on the twenty-second day of August, 1924. Thereafter, in due course, the court on October 14, 1924, entered its order as follows: “That proceedings herein be suspended and the defendant granted probation for the term of three years, under the supervision of the probation officer and subject to the terms and conditions stated by the court. The first nine months of said probation period, defendant is to be in the custody of the sheriff of the county of Los Angeles, during which time he shall be permitted to work on the public highways of Los Angeles county.” On May 28, 1925, the court made the following order: “Order of October 14, 1924, is now modified as follows: Defendant is ordered released on probation under the terms and conditions stated by the court.” On August 6, 1926, defendant was brought before the court pursuant to suggestion made that since his release on probation the defendant had violated the conditions of his probation. The defendant by his counsel then suggested that he was not legally on probation, and asked permission to file an application for a new trial. The application was filed, if we may so infer from the judge’s statement: “So far as the written motion is concerned it may be deemed filed.” The motion itself is not in the record. The court thereupon rendered judgment that the defendant be imprisoned in the state prison of the state of California, at San Quentin, for the term prescribed by law. The defendant appealed from the judgment, and from the order denying his motion for a new trial. In his “statement of grounds of appeal under Penal Code sections 1246 and 1247,” defendant specified that the court had no jurisdiction to pronounce judgment, for the reason that defendant was not sentenced within the time provided under sections 1191 and 1202 of the Penal Code, and that the court erred in denying his motion and request for a new trial.

Section 1191 of the Penal Code states and limits the time for pronouncing judgment, and defines the rules governing extensions of time for pronouncing judgment. Section 1202 of the Penal Code provides, among other things, that if the judgment be not rendered or pronounced within the time

[1] The first question which suggests itself relates to the meaning and effect of the foregoing provision for a new trial, in a case where there has been no first trial. This, of course, always is the condition of the case when a defendant has pleaded guilty. The “new trial” referred to in section 1202 is a trial upon issues of fact. It seems to be axiomatic that on such plea there are no issues of fact, and that there is nothing for a jury to try or to decide. “A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given.” (Pen. Code, see. 1179.) [2] We conclude that the right to a new trial, as given by said section 1202, does not apply when the defendant is awaiting judgment under a plea of guilty. [3] Further, it is now settled by decision that failure to impose sentence within the time limited by section 1191 of the Penal Code does not affect the jurisdiction of the court to impose sentence. (Rankin v. Superior Court, 157 Cal. 189 [ 106 Pac. 718 ].) [4] And even if it were conceded that the defendant was entitled to a new trial, the court’s denial thereof was an error in a matter of procedure. Such error is not a ground for reversal, unless the error has resulted in a miscarriage of justice. (People v. Zuvela, 191 Cal. 223 [ 215 Pac. 907 ]; People v. Haines, 64 Cal. App. 628 [ 222 Pac. 183 ].)

[5] There is, only one other suggested reason offered as a basis for the claim that on August 6, 1926, the court had lost jurisdiction to sentence the defendant. This relates to that part of the record which shows an attempt to combine with a probation order an order retaining the defendant in the custody of the sheriff during a part of the probationary period. On the authority of People v. Mendosa, 178 Cal. 509 [ 173 Pac. 998 ], this court in two of its decisions held that the superior court is without authority to suspend execution of sentence or imposition of sentence without admitting the defendant to probation. (In re Clark, 70 Cal. App. 643 [ 243 Pac. 109 ]; In re Howard, 72 Cal. App. 374 [ 237 Pac. 406 ].) In those eases, the orders which were in question therein were construed to be orders not made as probation orders. In the Clark case, we said that for two sufficient reasons

So it appears that from and after the twenty-eighth day of May, 1925, the defendant was regularly on probation pursuant to an order suspending proceedings against him and granting him probation for the term of three years; that while thus at large, and within the unexpired term of his probation, the defendant violated the conditions thereof. This being so, and the facts having been duly determined by the court below, the validity of the judgment seems to be clearly established.

The judgment and order are affirmed.

Houser, J., and York, J., concurred.