In re Nafe

On June 3, 1957, petitioner was sentenced to the Illinois State Penitentiary for a term of 10-15 years after conviction of armed robbery. He was paroled on February 6,1964, delivered to the custody of Santa Monica police officers, and returned to Los Angeles County for trial on a charge of armed robbery committed in California before

Upon petitioner’s application for a writ of habeas corpus, we issued an order to show cause to ascertain why petitioner’s California sentences should not be held to run concurrently rather than consecutively, and to determine if there was any reason why petitioner should not be turned over to Illinois authorities so that he might serve his California sentences concurrently with his unexpired Illinois sentence. On the return to the order, respondent concedes that petitioner is entitled to be released to the Illinois authorities for the purpose of serving his uncompleted sentence in order to give effect to the portion of the California judgments providing that his

Section 669 of the Penal Code provides, in part, as follows: “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently, or whether the imprisonment to which he is or has been sentenced upon the second or subsequent conviction shall commence at the termination of the first term of imprisonment to which he has been sentenced, or at termination of the second or subsequent term of imprisonment to which he has been sentenced, as the case may be . . .” Under that section, in the case of multiple convictions, the court pronouncing the second sentence determines whether its sentence and the previously imposed sentence shall run concurrently or consecutively. (In re Rye, 152 Cal.App.2d 594 [ 313 P.2d 914 ]; People v. Knight, 193 Cal.App.2d 248 [ 14 Cal.Rptr. 77 ].) In the present ease, the Orange County Superior Court imposed the second or subsequent sentence and, as a result, it, and not the Los Angeles County Superior Court, was empowered to determine whether the two California terms of imprisonment should run concurrently or consecutively.

The Attorney General contends, however, that when a defendant is placed on probation, there is no “judgment” as that term is used in section 669 until probation has been revoked and sentence ordered into execution, and that, accordingly, the Los Angeles court rendered the “second or other

The contention and argument of the Attorney General fails to give due consideration to the fundamental distinction between a grant of probation following suspension of imposition of sentence and one following suspension of execution of sentence, and to the fact that in the present case, probation was granted after sentence had been imposed and execution thereof suspended. As pointed out in People v. Arguello, 59 Cal.2d 475 , 476 [ 30 Cal.Rptr. 333 , 381 P.2d 5 ], “In granting probation after a conviction, the trial court may suspend the imposition of sentence, in which ease no judgment of conviction is rendered, or it may impose sentence and order the execution thereof stayed. In the latter case a judgment of conviction has been rendered.” Section 1203.2a, which is relied upon, recognizes this distinction and limits the right of the court upon revocation of probation to order sentences to run consecutively to cases in which no sentence was imposed at the time probation was granted. The quoted portion of that section begins with the phrase “Upon imposition of sentence hereunder, ’ ’ and other portions of that section authorize the court to impose sentence only “if no sentence has previously been imposed for the offense for which he was granted probation.” People v. Knight, supra, also expressly recognizes the distinction referred to above. It was there held that

When, as in the present case, probation has been granted after sentence has been imposed and execution suspended, the court revoking probation is precluded from directing that its previously imposed sentence shall run consecutively with a sentence imposed during probation for a subsequent offense. Section 1203.2 of the Penal Code provides that “if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke such suspension, whereupon the judgment shall be in full force and effect, and the person shall be delivered over to the proper officer to serve his sentence. ...” It has been held that the foregoing section prohibits modification of a previously imposed sentence or imposition of a different or additional judgment upon revocation of probation (People v. Arguello, supra, 59 Cal.2d 475 ; In re Robinson, 142 Cal.App.2d 484 [ 298 P.2d 656 ]), and that the direction as to whether sentences shall run concurrently or consecutively is a part of the judgment. (In re Pedrini, 33 Cal.2d 876 [ 206 P.2d 699 ]; In re Rye, supra, 152 Cal.App.2d 594 ; In re Radovich, 61 Cal. App.2d 177 [ 142 P.2d 325 ]; People v. Cowan, 44 Cal.App.2d 155 [ 112 P.2d 62 ].)

We hold that the commitment and purported judgment issued and pronounced by the Los Angeles Superior Court on March 1, 1965, following revocation of petitioner’s probation, erroneously directs or declares the sentence of said court shall run consecutively to the sentence imposed by the Orange County Superior Court on January 8, 1965, that such direction or declaration has no legal effect, and that, with respect to the judgments before us, the terms of imprisonment run concurrently. Although we cannot in this proceeding deal directly with the commitment or purported judgment of March 1, 1965, by amending it, we can ascertain and declare its meaning and effect. (In re Ramey, supra, 234 Cal.App.2d 459 ; In re Rye, supra.)

It is ordered that the superintendent of the California Men’s Colony at Los Padres make petitioner available for delivery to the Illinois State Penitentiary authorities for the purpose

Herndon, Acting P. J., and Fleming, J., concurred.

The petitions of the petitioner and the respondent for a hearing by the Supreme Court were denied December 22,1965.