is separate from the rest of the department. Only the chief probation officer and the chief deputy probation officer have any authority over the work of the adult division and its director. The director of the adult division is in charge of all activities in this division and directs the activities of each of the subdivisions in the organization. With the probation officer and the chief deputy probation officer, the director determines all matters of policy concerning the adult department. The administration of the adult division is organized into nine subdivisions, each headed by a divisional director. The subdivisions are as follows:

Court division.

Supervising division.

Women's court and supervising division.

Out of county, out of State, and narcotics division.
Restitution and fine section.

Violation division.

Parole division.

Branch offices.
Clerical staff.

The court division does the work of presentence investigation and report. The organization of this division is such that one man is permanently assigned to each of the departments of the superior court trying criminal cases and four men to the master calendar department which hears arraignments and pleas in criminal cases. The supervising division is divided into 16 districts. The county of Los Angeles is divided into 15 districts, with 1 officer to each district. Twelve of these districts are geographical and three are made up of special types of cases. These latter consist of (a) colored probationers supervised by a colored officer, (b) women probationers supervised by the women's division, and (c) narcotics cases. The remaining supervision district is the out of State and out of county division.31 The director of the out of county, out of State, and narcotics division, with one assistant, has charge of the super

31 The women's division, and the out of State, out of county and narcotics division, are also separate subdivisions of the adult department. The women's division handles all cases in which the defendant is a woman. Wherever possible the same assistant remains in charge of a case from application to termination, doing the investigation and supervision. As in other counties in California, field supervision in Los Angeles County is inadequate.

vision of all probationers who do not reside in Los Angeles County, in addition to all narcotics cases. The parole division consists of one deputy probation officer, acting as county parole officer, who has supervision of all persons paroled from jail by the county parole board. Branch offices of the adult division are maintained in Long Beach and Pasadena to take care of probationers released by the departments of the superior courts in those areas. The probation department as a whole has a division of research and statistics which analyzes data for both the juvenile and adult work.

Department public welfare.-The State department of public welfare has the duty and the power to investigate, examine, and make reports upon adult and juvenile probation. Probation officers are required to furnish information and statistics upon request of the department. The department may prescribe forms of reports and records. 82 It is also the function of this department to promote conferences for probation officers and distribute information in regard to the practice of probation throughout the State. The department reports biennially to the Governor.34

32

Division of criminal identification.—The division of criminal identification and investigation at Sacramento also acts as a clearing house of criminal statistics and has the power to require reports from probation officers.35

Procedure.-After conviction by plea or verdict of guilty of a public offense in cases where discretion is conferred on the court or any board or commission or other authority as to the extent of the punishment, the court may determine the matter of probation.se The defendant may apply for

Cal. Pol. Code (Deering, 1931) § 2333.

"Biennial Report, Division Probation, Dep't Social Welfare, July 1932June 1934.

Cal. Pol. Code (Deering, 1931) § 2335.

Cal. Stat. 1929, ch. 788.

Cal. Pen. Code (Deering, 1937) § 1203. Justice courts, having only a misdemeanor jurisdiction, may grant probation. Cal. Pen. Code (Deering, 1937)

1203a; Cal. Pen. Code (Deering, 1937) § 1203.1; In re Clausen, 14 Cal. App. (2d) 246, 57 P. (2d) 1353 (1936). Municipal courts may suspend sentence and grant probation under this statute. In re Herron, 217 Cal. 400, 19 P. (2d) 4 (1933); People v. Wallach, 8 Cal. App. (2d) 129, 47 P. (2d) 1071 (1935). The juvenile court has now power under § 1203 to place one under 18 on probation since the court has no authority to administer punishment but only to

probation or the court may determine the matter on its own motion. The court may summarily deny an application for probation or refuse to allow an application to be filed, or it may appoint a time for a hearing in the presence of the defendant to determine the matter. In the latter case an investigation and report by the probation officer is mandatory. But in either event the court retains discretion to refuse or grant probation. The usual practice in Los Angeles, Santa Clara and other counties is to permit an application to be filed and to refer the case to the probation officer in nearly every instance in which the defendant is convicted.

37

Refusal of the court to grant probation will not be interfered with on appeal in the absence of an abuse of discretion.88 Denial of probation on the ground that the case is outside the scope of the probation law, when as a matter of law the defendant may be placed on probation, constitutes an abuse of discretion.89

make a defendant within juvenile jurisdiction a ward of the court. In re Hulbert, 123 Cal. App. 362, 11 P. (2d) 50 (1932).

37 Cal. Pen. Code (Deering, 1937) § 1203: People v. Forbragd, 127 Cal. App. 768, 16 P. (2d) 755 (1932). If probation is denied, the clerk of the court must forthwith send a copy of the report and recommendation to the board of prison directors. Ibid. A motion to vacate judgment and to hear and entertain evidence on the matter of probation is out of order, since the penal code makes no provision for such motion on such ground. People v. Looney, 9 Cal. App. (2d) 335, 49 P. (2d) 889 (1935). An application for probation need not be heard by the same judge before whom the plea of guilty was entered. People v. Martino, 113 Cal. App. 661, 299 Pac. 86 (1931). Probation may be summarily denied. People v. M'Kay, 122 Cal. 628, 55 Pac. 594 (1898); People v. Dunlop, 27 Cal. App. 460, 150 Pac. 389 (1915); People v. Anderson, 98 Cal. App. 40, 276 Pac. 401 (1929); People v. Martin, 114 Cal. App. 337, 300 Pac. 108 (1931); People v. Judson, 128 Cal. App. 768, 18 P. (2d) 379 (1933); People v. Roveano, 130 Cal. App. 222, 19 P. (2d) 506 (1933); People v. Bill, 140 Cal. App. 389, 35 P. (2d) 645 (1934); People v. Howe, 1 Cal. App. (2d) 518, 36 P. (2d) 820 (1934); People v. Krug, 10 Cal. App. (2d) 172, 51 P. (2d) 445 (1935). Bue see People v. Keylon, 122 Cal. App. 408, 10 P. (2d) 86 (1932). where the court held that the trial court was under a duty to permit the filing of a formal application for probation.

Probation may also be denied in the sound discretion of the court after hearing or other consideration of a case on its merits. People v. Johnson, 9 Cal. App. 233, 98 Pac. 682 (1908); In re Henry Tom, 17 Cal. App. 678, 121 Pac. 294 (1911); People v. Brahm, 98 Cal. App. 733, 277 Pac. 896 (1929); People v. Whipple, 100 Cal. App. 261, 279 Pac. 1008 (1929); People v. Costa, 108 Cal. App. 90, 290 Pac. 891 (1930); People v. Martino, 113 Cal. App. 661, 299 Pac. 86 (1931); People v. Roach, 139 Cal. App. 384, 33 P. (2d) 895 (1934); People v. Mortensen, 10 Cal. App. (2d) 124, 51 P. (2d) 450 (1935).

An application for probation was allowed to be filed in the case of an assault with a deadly weapon. The application was necessarily denied. The defendant appealed on the theory that the delay occasioned by permitting an application to be filed in a case excluded from the probation law entitled him to a new

In the order granting probation the court may suspend either the imposition or execution of sentence. As a matter of practice in most counties " the judges suspend

trial. The court held that there was nothing in the probation law which prohibited the filing of an application even though probation was not possible. And the court's action did not entitle defendant to a new trial. People v. Charles Tufano, 7 Cal. App. (2d) 561, 46 P. (2d) 192 (1935).

"People v. Lippner, 219 Cal. 395, 26 P. (2d) 457 (1933), rev'g 16 P. (2d) 1020 (1933); People v. Bryant, 101 Cal. App. 84, 281 Pac. 404 (1929); People v. Hopper, 66 P. (2d) 459 (1937). Some cases have said, however, that the refusal is not reviewable at all. People v. Bartley, 12 Cal. App. 773, 108 Pac. 868 (1910); People v. Dunlop, 27 Cal. App. 460, 150 Pac. 389 (1915); People v. Laborwits, 74 Cal. App. 401, 240 Pac. 802 (1925); Svoboda v. Purkitt, 75 Cal. App. 148, 242 Pac. 81 (1925); People v. Kirwin, 87 Cal. App. 783, 262 Pac. 803 (1927); People v. Judson, 128 Cal. App. 768, 18 P. (2d) 379 (1933).

Where an oral application for probation was made but the defendant failed to sign a written application it was held no error for the trial judge to sentence defendant with a mere reference to the failure to pursue the application and without a denial of probation in express terms. People v. Mangus, 5 Cal. App. (2d) 353, 42 P. (2d) 681 (1935). There is no error in overruling defendant's oral application to file a written application for probation where counsel made such oral application but defendant could not be induced or persuaded to apply for probation and insisted that he be granted a new trial which had already been denied. People v. Roland, 134 Cal. App. 675, 26 P. (2d) 517 (1933).

Where defendant pleaded guilty on speculation of the possibility of receiving probation it was held not an abuse of discretion for the trial court to deny withdrawal of the plea and application for probation. People v. Blumen, 87 Cal. App. 236, 261 Pac. 1103 (1927).

People v. Jones, 87 Cal. App. 482, 262 Pac. 361 (1927); People v. Miller, 112 Cal. App. 535, 297 Pac. 40 (1931); People v. Osterhelt, 125 Cal. App. 723, 14 P. (2d) 140 (1932) (cases holding trial court erred in refusing probation on ground probation could not be extended to persons denying guilt and going to trial, but only to persons pleading guilty).

Where the trial court summarily denied probation in a case of intoxicated driving without a license, involving one death and three serious injuries, the court saying, "It is not a probation case," the court's action was held not an abuse of discretion, since the trial court did not mean to exclude the case from the scope of the probation law. People v. Martin, 114 Cal. App. 337, 300 Pac. 108 (1931).

Where the court in a supplemental charge to the jury, after explaining that punishment of the defendant had nothing to do with them, proceeded to explain what punishments various verdicts would carry and the method of applying for probation, it was erroneous to instruct the jury that way but not reversible error. People v. Bruno, 49 Cal. App. 372, 193 Pac. 511 (1920).

Where defendant, convicted on one information containing two counts, one charging conspiracy to extort, the other conspiracy to maintain a suit falsely, is held to have been convicted in effect of only one conspiracy, the court cannot grant probation on the first count and at the same time sentence defendant to a term in State prison under the second count. But the court does not lose jurisdiction to pronounce sentence again. In re Nichols, 82 Cal. App. 73, 255 Pac. 244 (1927). See also, People v. Marks, 83 Cal. App. 371, 257 Pac. 92 (1927). Cal. Pen. Code (Deering, 1937) § 1203.1.

The following superior county courts usually suspend imposition of sentence: Merced, Orange, Kern (one judge suspends imposition; the other execution), San Bernardino, Sacramento, Mendocino, Humboldt, Ventura, Napa, Solano, Tehama, Fresno, Kings, and Stanislaus.

the imposition of sentence in most cases.42 In a few counties the judges grant probation by suspending imposition in some cases and execution in others.43 The usual procedure in Los Angeles and Lake Counties, however, is to impose sentence first and suspend the execution.

The courts of California must impose sentence within not less than 2 or more than 5 days after verdict or a plea of guilty, but may extend the time until any proceedings with regard to probation have been disposed of.**

If a court wishes to grant probation before the imposition of sentence it must do so within the time to which imposition of sentence has been continued. If the court fails to order probation and also fails to impose sentence in time, the defendant is entitled to a new trial, if there has been a miscarriage of justice. But the right may be waived by

46

45

42 It has been suggested by some judges that the reason for this procedure is to retain the freedom of deciding what the sentence should be upon revocation of the order. These judges apparently go upon the theory that where sentence is once imposed, the power to change that sentence upon revocation does not exist. It is true that the statute says that, in a case where execution of sentence has been suspended, upon revocation the original sentence "shall be in full force and effect." Cal. Pen. Code (Deering, 1937) § 1203.2. But the statute also gives the court power at any time during the term of probation to revoke or modify its order of suspension of imposition or execution of sentence. It would seem that under the power of modification, even in cases of suspension of execution, freedom to change the sentence at the time of revocation, remains. But there are no decisions on the point. See id. § 1203.3.

43 E. g., Tulare and Santa Clara Counties.

44 Cal. Pen. Code (Deering, 1937) § 1191. The 1935 law limited the period for consideration of the question of probation to 20 days or upon request of the defendant the time might be extended to 90 days. Cal. Pen. Code (Deering, 1935) 1191.

Where the plea of guilty was followed by a delay of 100 days but the plea was subsequently withdrawn and date set for trial and subsequently another plea of guilty was entered and followed by sentence, it was held that the court did not exceed its authority. People v. Creitser, 25 Cal. App. 647, 145 Pac. 109 (1914). Where the court obtains the request and consent of the defendant to an extension beyond the 20-day period (under the 1935 law) by refusing to extend the period without such consent and subsequently denies probation, the court is not guilty of coercion of the defendant to submit to the delay. People v. Lamattina, 38 Cal. App. 82, 175 Pac. 484 (1918). Although the 1935 statute seemed to require request by the defendant at the end of the 20-day period for a new extension, it was held that a waiver of the statutory period at the time of the application for probation was a good waiver of any time within the maximum period of 115 days after verdict that the court in its discretion might find necessary for consideration of the application. People v. Bentson, 132 Cal. App. 295, 22 P. (2d) 734 (1933).

45 Cal. Pen. Code (Deering, 1937) § 1202; People v. Gilbreath, 33 Cal. App. 23, 164 Pac. 18 (1917); Rankin v. Super. Ct., 157 Cal. 189, 106 Pac. 718 (1910); People v. Boling, 32 Cal. App. 42, 161 Pac. 1169 (1916).

People v. Zuvela, 191 Cal. 223, 215 Pac. 907 (1923); People v. Ramos, 80 Cal. App. 528, 251 Pac. 941 (1926); People v. Powell, 83 Cal. App. 62, 256 Pac. 561 (1927); People v. Wilson, 101 Cal. App. 376, 281 Pac. 700 (1929).