48

failure to ask for it at the time of sentence," but not by consent to the delay at the time of the order continuing the case for consideration of the matter of probation. But once a person is placed on probation he is deemed to have waived the right to have sentence imposed, by his application for probation. It has even been held that the court in its discretion could refuse to allow an application to be withdrawn before probation is granted, where the request for withdrawal was made on the date appointed for the hearing of the application. In the later case the court was allowed to grant probation over the objection of the defendant, the right to have sentence imposed having been waived by the application for probation.50 After the sentence has been imposed the court may hear an application and grant probation at any time before the defendant begins to serve his sentence even after affirmance of the judgment on appeal.51 But where the court does not stay execution of sentence but commits the defendant to State prison it loses jurisdiction to entertain an application for probation after affirmance of the judgment on appeal.52

A sentence may not legally be suspended unless the suspension is according to the provisions of the probation law,

47 People v. Polich, 25 Cal. App. 464, 143 Pac. 1065 (1914); People v. Okomoto, Cal. App. 568, 147 Pac. 598 (1915).

Where there is no showing on the record in a habeas corpus proceeding either that an objection was made to the court's jurisdiction to pronounce sentence after the 5 day period or that a postponement beyond that time was not made for the purpose of considering the matter of probation, it will be assumed that an order of postponement was made, and the action of the trial court will not be disturbed. In re Todd, 44 Cal. App. 496, 186 Pac. 790 (1919).

People v. Winner, 31 Cal. App. 352, 160 Pac. 689 (1916).

*People v. Von Eckartsberg, 133 Cal. App. 1, 23 Pac. (2d) 819 (1933); People v. Neel, 133 Cal. App. 332, 24 P. (2d) 230 (1933); People v. Noone, 132 Cal. App. 89, 22 P. (2d) 284 (1933).

In re DeVoe, 114 Cal. App. 730, 300 Pac. 874 (1931) (petition for rehearing and application for appeal denied). The result of the cases cited in note 49 and the DeVoe case is to deny the right to an appeal, since the right to have Judgment pronounced is waived and before the pronouncement of judgment there is nothing to appeal from.

There is no constitutional provision by which a judge is forbidden, in the exercise of a vested discretionary power, to grant probation to a convicted defendant without first imposing sentence upon him. Ibid.

Lloyd v. Super. Ct. Los Angeles Co., 208 Cal. 622, 283 Pac. 931 (1929); People v. Superior Ct. Imperial Co., 208 Cal. 692, 284 Pac. 451 (1930), rev'g People v. Super. Ct., 280 Pac. 202 (1929); In re Maguth, 103 Cal. App. 572, 284 Pac. 940 (1930). See also, People v. Anderson, 98 Cal. App. 40, 276 Pac. 401 (1929). Contra: Beggs v. Super. Ct., 179 Cal. 130, 175 Pac. 642 (1918).

In re Bost, 214 Cal. 150, 4 P. (2d) 534 (1931). See also, In re Bost, 113 Cal. App. 237, 298 Pac. 85 (1931).

but although an order does not conform with the statute it will be held that it was made by authority of and within the purview of the probation law.58 Thus, an order of suspension without more is deemed the equivalent of an order of probation.54 A formal order granting probation is not necessary.55 Although for the period of suspension the defendant must be placed in the custody of an officer," the fact that the defendant is not placed under supervision does not invalidate the order of suspension, but the sentence may only be revoked and the defendant rearrested pursuant to the provisions of the probation law. However, a suspension of sentence in a case in which the statute does not authorize releasing defendant on probation will not be considered an order of probation.58 Nor can an order suspending sentence in which it is specifically stated that the application for probation is denied be considered valid." Orders suspending sentence for a brief period 60 or for the purpose of receiving certain information from another State concerning a felony there committed 1 or until the defendant is discharged from the service of another sentence,62 are not deemed a grant of probation. Although the releases are void, the court does not lose jurisdiction to impose sentence or order its execution.

61

3 Ex parte Slattery, 163 Cal. 176, 124 Pac. 856 (1912).

54 In re Herron, 217 Cal. 400, 19 P. (2d) 4 (1933).

People v. Wallach, 8 Cal. App. (2d) 129, 47 P. (2d) 1071 (1935). Nor is a formal order of suspension of imposition of sentence necessary; an order granting release on probation is the equivalent of an order suspending sentence. People v. Sapienzo, 60 Cal. App. 626, 213 Pac. 274 (1923). And withholding the commitment on a judgment of conviction is the equivalent of a suspension of execution of sentence. Ex parte Slattery, 163 Cal, 176, 124 Pac. 856 (1912). 6 I. c., unless he is committed to county jail as a term of the probation, in which case he must be placed in the custody of an officer upon release from county jail. Cal. Pen. Code (Deering, 1937) § 1203.1; People v. Mendosa, 178 Cal. 509, 173 Pac. 998 (1918).

57 Ex parte Slattery, 163 Cal. 176, 124 Pac. 856 (1912); In re Giannini, 18 Cal. App. 166, 122 Pac. 831 (1912); In re Young, 121 Cal. App. 711, 10 P. (2d) 154 (1932).

5 In re Collins, 8 Cal. App. 367, 97 Pac. 188 (1908); Ex parte Moore, 12 Cal. App. 161, 107 Pac. 129 (1909).

50 In re Clark, 70 Cal. App. 643, 234 Pac. 109 (1925); In re Eyre, 1 Cal. App. (2d) 451, 36 P. (2d) 842 (1934); In re Claude Taylor, 140 Cal. App. 102, 34 P. (2d) 1036 (1934).

60 In re Howard, 72 Cal. App. 374, 237 Pac. 406 (1925) (suspension for 3 days).

1 People v. Harvey, 137 Cal. App. 22, 29 P. (2d) 787 (1934).

62 In re Cohen, 198 Cal. 221, 244 Pac. 359 (1926).

In most counties notice of an application for probation is received by the probation office from the court clerk or the sheriff, or the district attorney, unless a probation officer is present in court when the application is made. In many cases from the justice courts, however, notice of an application for probation is not received until after probation is granted and the defendant brought to the probation office.

Probation cases may be transferred to any court of the same rank as the one releasing the defendant, in any other county in which the defendant resides or to which he may remove. The court must commit the probationer to the custody of the officer of the county to which the transfer is made. The receiving court thereupon assumes entire jurisdiction over the case with like power to transfer whenever a transfer seems proper."

63

Procedure: Los Angeles County.-In most instances in Los Angeles County the defense attorney promptly files a copy of the application for probation with the probation office. But sometimes this is neglected and the probation office learns of the application too late for an investigation to be made.

A case generally enters the adult probation division through the filing of an application form with the calendar clerk of the division. It is required that this application be filed in duplicate and that it be accompanied by a copy of the transcript of the preliminary examination. As soon as the application is received by the calendar clerk, it is immediately sent to the file room where the name of the applicant is checked against the master index of names to determine whether or not the applicant has been previously on probation and if so, whether he is still on probation. If a current file exists under the applicant's name it is immediately sent back, with the application, to the calendar clerk. The calendar clerk at this point gives the application a probation-office number. If it is a new case or an old one in which probation has expired, the next chronological number will be used. If it is a case in which the applicant is

63 Cal Pen. Code (Deering, 1937) § 1203.9. Although the statute reads as indicated in the text, it is questionable whether a receiving court has the power to revoke probation and commit a defendant or whether its jurisdiction is limited to supervision and reference of violations to the original court.

still on probation he will be handled under the old case number.

The calendar clerk then selects the court officer to handle the investigation of the case. There are approximately 10 departments of the superior court that handle criminal cases. In nine of these an officer is assigned to each department and if the probation application appears in one of these departments, the officer working in that department handles it. If, however, the case is handled in the master calendar department for criminal cases, the case is assigned to the director of the court division who assigns it later to one of the four officers working there. This procedure is followed in order that the assignments to the four officers serving in the master calendar department may be equalized.

Before the application passes from the hands of the calendar clerk it is entered in the alphabetical calendar under the name of the applicant and a notation is made there of the number of the case, the investigating officer, and the date on which the probation report is due. The application is also entered in the daily calendar book under the date on which the report is due. Notations include the probation number, date of filing application, investigation officer, and the court in which the report will be heard.

The calendar clerk in addition prepares a small chaindex slip for the file room on which is typed the name of the defendant, the date of the probation hearing, the file number, the charge, the names of the investigating officer and the judge. This permits the file room immediately to enter the case in the master index and to identify it as a case on file and in the hands of the investigating officer during the interval before hearing. The first copy of the application for probation and the transcript of the preliminary examination are then either routed to the investigating officer or recorded at the office of the director of the court division. The duplicate copy of the application goes to the file room and becomes the first piece of information in the jacket or file on the case. The calendar clerk also types, in triplicate, a list of all applications filed every half day. On this list appears the file number, the date, the name of the applicant, and the investigating officer. One copy is sent to the

Hollerith room, one to the file room, and one to the director of the court division. This furnishes a check list of the applications filed and in the hands of the court division officers. Before the application leaves the calendar clerk's office form letters are made out for each of the references listed by the applicant and also for the police investigator or the arresting officer in the case. A memorandum of the application is sent to the Social Service Exchange.

Whenever probation is granted by the court, the case is immediately assigned to a supervision officer on the basis of the geographical residence of the defendant. The court officer who is present at the probation hearing fills out a memorandum of the action taken in the case and the determination of the court. This is filed in the probation office on the day probation is granted. A copy of the official minutes of the court is received by the probation office a day or two later and the minutes and the memorandum are checked against each other to be sure that the exact disposition of the court is known and that every condition attached to probation by the court is properly entered in the records.

64

Appeal.-An appeal may be taken by a defendant from a final judgment of conviction, or from any order made after judgment affecting the substantial rights of the party. When an appeal is taken the appellate court can review any question of law involved in any order made prior to or after judgment, if objection in regard to the matter was made in and considered by the lower court and if the making of the order affected the substantial rights of the defendant.65

66

Until sentence is imposed in California there is no final judgment from which to appeal. Thus there is no direct appeal from an order denying probation before sentence,67 nor is there a direct appeal from an order granting proba

People v. Chapman, 55 Cal. App. 192, 203 Pac. 126 (1921); People v. Patello, 125 Cal. App. 480, 13 P. (2d) 1068 (1932).

People v. Block, 134 Cal. App. 217, 25 P. (2d) 242 (1933); People v. Bratten, 137 Cal. App. 658, 31 P. (2d) 210 (1934); People v. Brooks, 140 Cal. App. 480, 35 P. (2d) 583 (1934).