69

tion before sentence. An order denying probation before sentence may be reviewed on appeal from the judgment after sentence is pronounced. However, in the case of an order granting probation before sentence, since the defendant is deemed to have waived his right to have sentence imposed by the application for probation, he in effect waives his right to even an indirect review of such an order.70

An order granting or refusing probation after sentence has been imposed is subject to correction by a higher court by a writ of mandate." Whether an order granting or refusing probation after sentence is appealable as an order "made after judgment, affecting the substantial rights of the party" or whether it may be reviewed on appeal from the judgment as an order "which affected the substantial rights of the defendant" is open to doubt." It has been suggested by one case at least that probation is not a right within the meaning of the statutes quoted.73

Persons eligible.-Persons guilty of a public offense in cases where discretion is conferred on the court or upon some other authority as to the extent of the punishment may be placed on probation if the court determines that there are circumstances in mitigation, or that the ends of justice would be subserved by granting probation. But probation may not be granted to any defendant who is convicted of robbery, burglary, burglary with explosives, rape with force or violence, arson, murder, assault with intent to com

People v. Hartman, 23 Cal. App. 72, 137 Pac. 611 (1913); People v. Bentson, 132 Cal. App. 295, 22 P. (2d) 734 (1933); People v. Brooks, 140 Cal. App. 480, 35 P. (2d) 583 (1934); People v. Johnson, 14 Cal. App. (2d) 373, 58 P. (2d) 211 (1936); People v. Downing, 14 Cal. App. (2d) 392, 58 P. (2d) 657 (1936).

People v. Jones, 87 Cal. App. 482, 262 Pac. 361 (1927); People v. Lovelace, 97 Cal. App. 228, 275 Pac. 489 (1929); People v. Freithofer, 102 Cal. App. 165, 284 Pac. 484 (1930); People v. Payne, 106 Cal. App. 609, 289 Pac. 909 (1930); People v. Keylon, 122 Cal. App. 408, 10 P. (2d) 86 (1932); People v. Ramey, 135 Cal. App. 573, 27 P. (2d) 941 (1933).

10 In re DeVoe, 114 Cal. App. 730, 300 Pac. 874 (1931); People v. Von Eckartsberg, 133 Cal. App. 1, 23 P. (2d) 819 (1933); People v. Noone, 132 Cal. App. 89, 22 P. (2d) 284 (1933); People v. Neel, 133 Cal. App. 332, 24 P. (2d) 230 (1933).

Lloyd v. Super. Ct., 208 Cal. 622, 283 Pac. 931 (1929); People v. Payne, 106 Cal. App. 609, 289 Pac. 909 (1930); People v. Keylon, 122 Cal. App. 408, 10 P. (2d) 86 (1932).

72 Cal. Pen. Code (Deering, 1931) §§ 1237, 1259.

7 People v. Payne, 106 Cal. App. 609, 289 Pac. 909 (1930).

mit murder, attempt to commit murder, grand theft, train wrecking, feloniously receiving stolen goods, felonious assault with a deadly weapon, kidnaping, mayhem, escape from state prison, conspiracy to commit any one or more of the above felonies and who at the time of the prepetration of any of the above crimes, or at the time of his arrest was armed with a deadly weapon (unless at the time he had a lawful right to carry the same). Furthermore, probation may not be granted to a defendant who used or attempted to use a deadly weapon in connection with the perpetration of the crime" of which he was convicted, nor to one who in the prepetration of the crime of which he was convicted inflicted great bodily injury or torture. A person may not be placed on probation unless the court is satisfied that he has never in any place been previously convicted of a felony. Any public official or peace officer of the State, county, city and county, or other political subdivision who in the discharge of the duties of his public office or employment, accepted or gave or offered to accept or give any bribe or embezzled public money or was guilty of extortion, may not be released on probation.75 Persons punishable under the deadly weapons act may not be placed on probation.76

74 This does not seem to be restricted to the enumerated crimes but probably refers to any crime, as does the sentence following.

75 Cal. Pen. Code (Deering, 1937) § 1203.

76 Cal. Gen. Laws (Deering, 1931) Act 1970, § 4. The deadly weapons act punishes any person within the State of California who manufactures or causes to be manufactured or imports into the State or who keeps for sale, or offers for sale, or who gives, lends, or possesses any instrument or weapon of the kind commonly known as a black-jack, slingshot, billy, sand-club, sandbag, or metal knuckles, or who carries concealed upon his person any explosive substance other than fixed ammunition, or who carries concealed upon his person any dirk or dagger. Peace officers, however, are not prohibited from carrying any wooden club, baton, or any equipment authorized by the properly constituted authorities for the enforcement of law or ordinance in any town, etc. Cal. Gen Laws (Deering, Supp. 1935). Act 1970 § 1. Furthermore all aliens, narcotic addicts and felons are punishable for owning or possessing or having under their custody or control any pistol, revolver or other firearm capable of being concealed upon the person. Cal. Gen. Laws (Deering, 1931) Act 1970, § 2. The deadly weapons act also provides for additional punishment in the case of any person committing a felony while armed with any of the weapons mentioned in the sections of the act set out above, and the additional punishment may also not be suspended nor a person released on probation in lieu thereof. Id. §§ 3, 4.

Criminal intent is not necessary under the deadly weapons act. People v. Gonzales, 72 Cal. App. 626, 237 Pac. 812 (1925). The act does not only pro

One who in the perpetration of the crime inflicts great bodily injury must do so willfully and intentionally (expressly or impliedly) before he can be taken out of the scope of the probation law. A person, therefore, who is convicted of involuntary manslaughter cannot be denied probation as a matter of law." Probation may properly be denied to one convicted of second-degree murder in a case involving abortion accompanied with great bodily pain and suffering.78

81

80

A person is armed with a deadly weapon within the meaning of the probation law either if he concedes that he was in fact armed," or the court finds as a fact that he was armed, although that fact is not an element of the crime for which he stands convicted; or, if he stands convicted or pleads guilty 82 to a crime which as a matter of law contains the element of being armed, although as a matter of fact he may not have been armed. But where the crime does not contain the element of being armed and the court does not find that defendant was in fact armed, the court cannot exclude the defendant from the scope of the probation law by imputing the defendant's being armed from the fact that the codefendant was armed.88

"Previously" in the prohibition against granting probation to one previously convicted of a felony 84 has reference to the time of the commission of the offense on which probation is sought and not to the time when the court is passing upon the application for probation. Hence a court has power to release one on probation after a conviction for

hibit the carrying of the weapons enumerated, as such, but "of the kind commonly known as black jack, etc." People v. Mulherin, 140 Cal. App. 212, 35 P. (2d) 174 (1934).

77 People v. Lovelace, 97 Cal. App. 228, 275 Pac. 489 (1929).

78 People v. Darrow, 212 Cal. 167, 298 Pac. 1 (1931).

79 People v. Costa, 108 Cal. App. 90, 290 Pac. 891 (1930).

80 People v. Williams, 121 Cal. App. 552, 9 P. (2d) 313 (1932).

81 People v. Gillstarr, 132 Cal. App. 267, 22 P. (2d) 549 (1933).

82 People v. Lewis, 140 Cal. App. 75, 35 P. (2d) 561 (1934); In re Sheffield, 63 P. (2d) 829 (1936).

83 People v. Freithofer, 103 Cal. App. 165, 284 Pac. 484 (1930). Where one guilty of grand theft of a bovine animal, used a rifle and shotgun in perpetrating the crime, he may not be released on probation. People v. Andrich, 135 Cal. App. 274, 26 P. (2d) 902 (1933). See also, People v. Ramey, 135 Cal. App. 573, 27 P. (2d) 941 (1933).

84 People v. Super. Ct. Imperial Co., 280 Pac. 203 (1929); People v. Super. Ct. Los Angeles Co., 136 Cal. App. 541, 28 P. (2d) 1076 (1934).

manslaughter although the defendant is again convicted of a felony between the time of the first offense and the hearing on probation.85 But a court cannot grant probation where a person has been previously convicted of a felony, although the imposition of sentence was suspended on the previous conviction and defendant was released on probation.86

It is reversible error for a court to intimate in its instructions to the jury that probation can be granted in a case excluded from the scope of the probation law 87 or that the jury's recommendation for probation can be given weight in such a case.88

Investigation. At the time of a plea or verdict of guilty in the case of any person over 18 years of age, the probation officer of the county of the jurisdiction of the criminal must, when directed by the court, investigate the antecedents, character, history, family environment, and offense of the defendant.89 If an application for probation is not denied, the court must refer the matter to the officer for investigation and report at a specified time. The written report containing the circumstances of the crime, prior record, and history of the defendant must be accompanied with the written recommendations of the officer as to the granting or withholding of probation and as to the conditions of probation if it is granted. The report and recommendations must be filed with the clerk of the court as a record in the case. At a time fixed, the court must consider the report in connection with the application for probation and must make a statement that it has considered it.90

In most counties, as a matter of practice, investigation is generally made only in those cases where an application for probation is allowed to be filed, although the statute allows investigation in all cases. The usual procedure includes interviewing the defendant, obtaining the criminal record of the defendant from the police or sheriff, obtaining the

85 People v. Super. Ct. Imperial Co., 208 Cal. App. 688, 284 Pac. 449 (1930).

86 People v. Brown, 139 Cal. App. 7, 33 P. (2d) 843 (1934).

87 People v. Smith, 206 Cal. 235, 273 Pac. 789 (1929).

8 People v. Covey, 137 Cal. App. 517, 30 P. (2d) 1010 (1934).

8 Cal. Pen. Code (Deering, 1937) § 1203.10.

90 Id.

§ 131.10.

§§ 1203, 1203.10. See also Cal. Code Civ. Proc. (Deering, 1931)

information on file with the district attorney, interviewing the complaining witness, relatives, and others who know the defendant, and the references given by the defendant. A week is generally allowed for the investigation and report. In some counties, however, a longer period is allowed. In San Francisco County, for example, three weeks is the period for investigation. The recommendations of the officer are usually followed by the court.

Investigation: Los Angeles County.-The work of investigation in the probation department of Los Angeles County is done by the court division consisting of fifteen officers. One officer is permanently assigned to each of the departments trying criminal cases and four men to the master-calendar department, which hears arraignments and pleas in criminal cases. There is one meeting of the division staff each month, at which time the members of the court division discuss their common problems and study the procedure used in conducting investigations and writing reports.

The usual practice of superior court judges is to set the date for the probation hearing 2 weeks from the date when permission is granted to file an application. Consequently, if the application is immediately transmitted to the probation office, there will be about 12 days available to the investigating officer for making his investigations and preparing his report to the court. If, on the other hand, there is any delay in transmitting the application to the probation office, the remaining time may be so limited as to prevent the completion of the investigation by the date set for the hearing.

The first step of the investigating officer is to familiarize himself with the facts shown in the application and transcript of the preliminary hearing. Steps are immediately taken to obtain the record of the defendant from either the police or sheriff's bureau of identification or both. As soon

01 The responsibility for the obtaining of these data formerly rested with each individual investigator but in 1936, through W. P. A. assistance, one man and two stenographers were stationed in the police bureau who were solely concerned with checking the records of those who applied for probation and who prepared a transcript or summary of the reports and data in the police files on these defendants. This, of course, was a real time-saving device for the investigating officers.