Opinion
Hearing Granted by Supreme Court Jan. 16, 1933.
Appeal from Superior Court, Los Angeles County; Ruben S. Schmidt, Judge.
M. Lippner was convicted of violating the Corporate Securities Act, and he appeals.
Reversed.
COUNSEL
A. Brigham Rose, of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and Alberta Belford, Deputy Atty. Gen., for the People.
OPINION
STEPHENS, Justice pro tem.
Appellant, defendant below, was charged with several violations of the Corporate Securities Act (St. 1917, p. 673, as amended). He pleaded guilty to three counts and the others were put off calendar. Sentence was not pronounced but probation was granted in the following terms: "It is ordered that proceedings be suspended and defendant granted probation for five years under the following conditions: Defendant must reimburse the investors within one year and comply with such other terms as shall be set forth by the probation officer." This order was made June 16, 1928. On January 21, 1930, the court made the following order: "Terms of probation are modified as follows: Defendant is allowed 4 years to reimburse investors. All other terms of probation are to remain the same." On June 16, 1932, after taking testimony, the order of probation was revoked and defendant sentenced to two years in the county jail.
Appellant’s first contention: "The trial court had no jurisdiction to revoke the probation."
It may be noticed that the order of probation provided that the probationer (appellant) should be "allowed 4 years to reimburse investors," and that the order revoking the probation was made eight days prior to the expiration of the four-year period. Appellant claims that he had the full four years and that the court was without jurisdiction to revoke the probation until the expiration of the period mentioned. However, assuming the terms of the probation legal in all respects, the court had an undoubted continuing right to examine into the efforts of the probationer to conform to the terms of his probation, and to modify the terms or to revoke the probation in its discretion. There is no merit to this point.
Appellant’s second contention: "The action of the trial court was arbitrary, and conceded to be so by that court itself, and was in excess of and contrary to accepted principles of the exercise of judicial discretion."
The testimony at the hearing on the question of revocation was directed solely to the matter of reimbursement. It was all one way to the effect that the probationer had paid all that he could pay and had turned over or had offered to turn over all of the property in which he had any interest, for the benefit of the investors. He does not claim that he has reimbursed the investors in full. We may say parenthetically that there is nothing before us from which the amount required for reimbursement can be ascertained. The testimony is uncontradicted that the probationer at the time of the hearing was in his 69th year and under the disability of a double hernia which would prevent him from hard manual labor; that he was a real estate dealer, but had been unable to make his own living at that or by any other means since the granting of the probation; and that he had, in fact, been partially dependent upon a relative during that period. The court’s plain statements, however, made at the time of the entry of the order of revocation, compel us to conclude that it considered all testimony beside the point and immaterial except that which was to the effect that probationer had not reimbursed the investors. Mr. Bisher, formerly attorney for and a friend of probationer, was making a statement as to the latter’s condition and inability to make money. The court stopped him and remarked: "The only purpose of granting probation was to give him the opportunity to reimburse the people. That was the only purpose for probation, and he has not made any. The only alternative is to make good. * * * The only purpose of granting probation was to give him an opportunity to make good. If he cannot, he should take punishment." Mr. Bisher: "Your Honor knows the real estate business. Real estate dealers cannot make enough money to pay for their licenses." The Court: "Then let the law take its course and I will sentence him." Whereupon the probation was revoked and sentence was pronounced. The Attorney General understands the lower court’s attitude as we do. We quote from the brief: "It appears from the things that transpired upon the hearing that probation was not granted to this appellant in order to rehabilitate him, or to mitigate his punishment. * * * It was admitted at the hearing that he could not pay the investors. * * * Defendant obtained no vested rights by reason of the terms of the probation. The order was in the nature of a conditional agreement; defendant retained his freedom upon continuing to promise to reimburse investors. Upon his admission in open court that he could not pay investors the condition failed, and it cannot be said that the court in revoking probation upon failure of the condition abused its discretion. [Italics ours.] Defendant argues that the action of the trial court was arbitrary because defendant was financially unable to reimburse investors. We again call this court’s attention to the fact that probation was not here granted for the benefit of the defendant, but for the benefit of the investors. [Italics theirs.] The ends of justice were best served by defendant being at large, because he could thereby earn money enough to repay those whom he had defrauded. This becoming impossible, the ends of justice were best served by defendant serving his sentence."
Throughout the history of probation and further back in the history of our jurisprudence, when various methods were invoked to lessen the severity of punishment for crime, the idea of mercy and rehabilitation has been uppermost. The idea of reimbursement has never been other than incidental to the main purpose. We shall note several methods used by the courts to modify the harshness of lawfully provided punishment.
During the seventeenth century in England, when many comparatively slight offenses were punishable by death, the judicial conscience was so shocked that the doctrine of benefit of clergy was construed far beyond its statutory intention; and under the guise of determining the prisoner’s right to a palpable fiction was practiced. By the statute only the clergy, peers, and clerks were favored; but as education was almost wholly confined to these classes, the ability to read was sufficient to demonstrate its applicability to any prisoner. Accordingly, even if the prisoner was not of the elect, if he could read, and the judge thought he deserved mercy, his punishment was softened or suspended. Indeed, even the question of his ability to read was often decided by fiction. When the inquiry was put to the clerk, the reply was in the affirmative if the court desired such answer. At times the very proof in open court was had through artifice; the prisoner would hold the test book before him and repeat what the clerk had taught him before session of court. Observations on the Criminal Law of England [Romilly] (3rd Ed.) 103. This judicial extension of the benefit of clergy was brought to America and survived the independence in some states, being rejected in others. See State v. Carroll, 24 N.C. 257, and Id., 27 N.C. 139, where it was applied, and Fuller v. State, 1 Blackf. (Ind.) 63, where it was rejected.
Later another fiction was invented whereby the mercy of the court was given practical application. If there were extenuating circumstances present in a trial or relating to a crime that appealed to the court’s conscience, the sentence was "placed on file" and not pronounced. The prisoner was released on a bond of little or no recoverable value. The bondsmen were rather selected by reason of their good standing and their probable good influence upon the released person. State v. Crook, 115 N.C. 760, 20 S.E. 513, 29 L. R. A. 260. This practice is described and held illegal so far as federal courts are concerned in Ex parte United States, Petitioner, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. The full right of federal courts to suspend sentence was, however, established by the Federal Probation Act of 1925 (18 USCA § § 724-727).
The doctrine of "approvement" was of very early use. An "approver" was an accomplice who pleaded guilty and revealed the full details of the crime. Lord Mansfield expressed it in this manner: "A kind of hope that accomplices who behave fairly and disclose the whole truth, and bring others to justice, should themselves escape punishment and be pardoned." Since the pardoning was a judicial act, it would seem to conflict with the executive function; but it has been held otherwise. People v. Court of Sessions of Monroe County, 141 N.Y. 288, 36 N.E. 386, 23 L. R. A. 856. Incidentally it is interesting to note that the immunity provisions of our statutes probably grew from this old practice. For its application in the United States see In re Wells, 18 How. 307, 15 L.Ed. 421.
Another method of relieving the convicted person from harsh punishment was to "quash after verdict." The indictments were minutely examined for the slightest error upon which the conviction could be set aside.
The earliest case we have found wherein practical probation was allowed with suspended sentence and sentence had after its revocation is Commonwealth v. Chase, reported in Thacher Cr. Cas. (Mun. Ct. Boston) at page 267. See Commonwealth v. Dowdican’s Bail, 115 Mass. 133.
Thus it will be seen that the courts, having been brought face to face with the inflexible severities of the law, gradually assumed the power to lessen the prescribed punishment or avoided it altogether where its strict enforcement would be unconscionable. Upon the foundation of these judicial practices the more frank, substantial, and more evenly administered doctrine of probation was erected. In more recent years this doctrine has been the subject of legislation resulting in a fundamental change. Whereas sentences have heretofore been tempered by a sort of gratuitous act of the judge, it is now effected, under modern probation, as a very substantial right of the defendant. The court must apply its discretion to the matter. This discretion is very broad, but it does not authorize arbitrary action. People v. Jones, 87 Cal.App. 482, at page 496 et seq., 262 P. 361.
It may be said with the utmost assurance that by precedent and by practice the basic reason for every probation is mercy to the defendant and the probability of rehabilitation of an individual to good standing in society. It should be granted only after mature consideration and after a conclusion by the court that the guilty one will not again forfeit his right to freedom but will in the end be salvaged from the wreck that crime has brought upon him. "It (probation) is the last remedy suggested by humanitarians, sociologists, penologists and criminologists, and disinterested people generally, in an effort to make salvage of at least a fair percentage of those convicted of crime." Chief City Magistrate McAdoo, in Chicago Legal News, vol. 44, p. 364.
The practice of the courts in the matter of alleviating the harshness of criminal law punishment in deserving cases, including the practice of suspending sentence, has culminated in California by the enactment of section 1203 of the Penal Code. In this section the court is given the assistance of probation officers to acquaint itself with (quoting therefrom) "the circumstances surrounding the crime and concerning the defendant and his prior record, which may be taken into consideration either in aggravation or mitigation of punishment; * * * and if it shall determine that there are circumstances in mitigation of punishment provided by law, or that the ends of justice would be subserved by granting probation to the defendant," it may do so. It is also provided by the section that the court may "revoke and terminate such probation, if the interests of justice so require, and if the court in its judgment, shall have reason to believe * * * that the person so placed upon probation is violating any of the conditions of his probation, or engaging in criminal practices, or has become abandoned to improper associates or a vicious life." It will be seen from these excerpts that the basis of granting as well as revoking probation is the same as it was throughout the years of judicial softening of harsh punishment. Respondent construes the phrase "ends of justice" as justifying the granting and revoking of probation upon the sole basis of reimbursement. Neither the history of probation, the reason for probation, nor the context of the section in which the phrase is found (section 1203, Pen. Code) support this contention. It is a general phrase covering all of the elements arising out of probation, but it is not so general as to apply solely to any one element that is not an essential of probation. People v. Jones, supra, 87 Cal.App. page 497, 262 P. 361.
That the power of the court to revoke probation under this section is as much a legal discretionary power as the granting of probation cannot be doubted. It is said in People v. Brahm, 98 Cal.App. 733, 277 P. 896, 898: "* * * That question [probation] rests with the sound discretion of the trial court. Since no abuse of discretion appears in the instant case, the decision * * * is necessarily conclusive." The following quotation is used with approval in Ex parte Young, 121 Cal.App. 711, 10 P.2d 154, at page 158: "It [revocation of probation] was a matter to be determined by the sound discretion of the court, and the exercise of that discretion, in the absence of gross abuse, cannot be reviewed here." In the instant case the trial judge wholly ignores the merciful and rehabilitation bases for probation and considers alone the reimbursement of those who lost money through the crime. The consideration of reimbursement is an important part of the terms of probation in cases of this nature, it is true, but we have found no authority for the proposition that probation may be based wholly upon the good it will do financial losers. This seems to us to be getting too near the theory of enforced labor for a debt. This doctrine is clearly analyzed and strangely justified by the Attorney General in respondent’s brief herein in the coldest and most heartless conclusions as to the purposes of probation that we have encountered in our rather extensive reading upon the subject. On the other hand, when a court approaches the matter in a just and considerate manner, with the true principles underlying it, probation constitutes the most enlightened, practical and hopeful progress in our criminal administration. See United States v. Maisel (D. C.) 26 F.2d 275, a comprehensive case in which the purposes of probation are clearly set out by a judge learned in the remedial and social sides of criminology.
Applying the ordinary rules of construction to the order of probation as granted in the instant case, one would be justified in arriving at the conclusion that the probation was to rest upon the good behavior of the probationer and upon his making all reasonable efforts toward reimbursement. As such it was a valid order. But when the court rules that the terms of the probation had been violated and should be revoked upon the one restricted finding that restitution had not been made, excluding the elements of possibility, as well as the exemplary conduct of the probationer, we think the discretion granted to the court by the above-quoted portion of section 1203 was not properly exercised. If appellant was legally under the restraint of probation at the time the order of revocation was made, we are of the opinion that the order affected his substantial rights, and, since the judgment sentencing him could not have been pronounced with such order, in effect, it should be reversed. However, the matter of doubt as to whether or not appellant was under any legal unexpired probation order is an element in and subject to our determination of the next contention.
Appellant’s third contention: "The appellant did not plead guilty to the commission of a felony. The court could only require defendant to remain on probation for a period of two years in this particular case."
Appellant’s argument under this caption is to the end that the sentence, after revocation of probation, being imprisonment in the county jail, constitutes the offense a misdemeanor and not a felony; that as he had already been under the probation restraint for almost four years, he could not be sentenced for an additional length of time. In fact, that the moment that the court pronounced the offense as a misdemeanor it lost jurisdiction to further restrain appellant of his liberty. We shall proceed to examine this contention.
It appears that each one of the charges to which the defendant pleaded guilty was set out as a violation of the Corporate Securities Act, a felony. The act itself does not use the term felony, but states that any one who violates it is "guilty of a public offense." The late case of Doble v. Superior Court, 197 Cal. 576, 241 P. 852, 860, states the following conclusion: "A fair construction of section 17 [Pen. Code], in order to give effect to every part thereof, requires us to hold, and we do so hold, that in prosecutions within the contemplation of that section the charge stands as a felony for every purpose up to judgment, and if the judgment be felonious [sic], in that event, it is a felony after as well as before judgment; but if the judgment is for a misdemeanor it is deemed a misdemeanor for all purposes thereafter--the judgment not to have a retroactive effect so far as the statute of limitations is concerned." And the Supreme Court also says, In re Rosencrantz, 211 Cal. 749, at page 751, 297 P. 15, 16: "The main point urged in the petition [habeas corpus] is that the judgment and commitment under section 644 of the Penal Code was improper because, it is contended, petitioner had not previously been convicted of three prior felonies. It is asserted that the alleged first conviction never occurred. The record shows that she was charged on January 12, 1920, in the county of San Diego, with the violation of the same statute as in her later convictions. She pleaded guilty and was granted probation for a period of two years. No judgment of conviction was pronounced by the court. The question is whether this constitutes the conviction of a felony within the meaning of Penal Code, § 644. It is established in this state, both by statute and judicial decision, that whether a crime is a misdemeanor or a felony it is to be determined by the punishment; and where a crime is punishable either by incarceration in the state prison or the county jail, the sentence actually given determines the nature of the offense. Cal. Pen. Code, § 17; People v. Bigelow, 94 Cal.App. 28, 270 P. 460. Hence if petitioner had been sentenced to the state prison, she would have been convicted of a felony; and had she been sentenced to the county jail, she would have been convicted of a misdemeanor. However, she was not sentenced at all, nor was any judgment of conviction pronounced; and this appears to us to be decisive of the problem. There being no conviction, there is nothing to bring this first case within the provisions of section 644." It was held in Ex parte Slattery, 163 Cal. 176, 124 P. 856, 857, that "by the provisions of the probation law, when a defendant has fulfilled the conditions of his probation for the entire * * * term of such sentence, the power of the court to enforce its original judgment is at an end. Pen. Code, § 1203, subd. 5."
It seems clear to us that appellant has never been held guilty of any offense other than a misdemeanor, and that, since he suffered restraint therefor under an order of probation for a longer period than the law permits for such an offense, the judgment and sentence was error. We think the judgment should be reversed because the revocation of the probation was an abuse of discretion and because at the time of judgment and sentence appellant had already been under the restraint of probation for a longer time than the offense justified.
Judgment reversed.
WORKS, P. J.
I concur, but I think something may be added to Justice STEPHENS’ analysis of the basic principles of the law of probation. Section 1203 of the Penal Code, in stating the many conditions which a judge may impose in granting probation, reads in part that he "may provide for reparation in proper cases." Taking the analysis made by Justice STEPHENS as a foundation upon which to build, it is to be asserted that the mere requirement that a guilty defendant shall make restitution, without more, is not a proper condition. The law never intended that such an unfortunate, by holdups on the highways or by slick practices in sumptuously outfitted offices, could despoil new victims in order to reimburse old ones; and yet, if appellant had obtained money by such means and with it had made the restitution required by the trial judge, he would have complied, exactly, with the letter of the probation order. The idea of a rehabilitation of the moral fiber of appellant was totally absent from the order of probation, in its letter. We are, however, made "ministers * * * not of the letter, but of the spirit, because the letter killeth, but the spirit giveth life," to quote the stately phrase of 2 Corinthians.
The trial judge, before allowing probation, necessarily had concluded that appellant was entitled to the grant, but if we take the order, as the judge construed it when he attempted to revoke it, this conclusion is utterly set at naught and the order of probation is made an absurdity. It is our duty, if possible, to uphold the grant even against an assault upon it by the judge himself--an assault which completely nullifies and annihilates it if the true purpose of probation is kept in mind. If the order of revocation is to stand, the result is that the original order, taking its mere letter, amounted to nothing within the true meaning of section 1203 and the punishment of appellant was but postponed, whether at the end of the prescribed season he were a better man or not. His offense was neither condoned nor was it palliated, nor was he really admitted to probation.
But the judge, as I have said, had concluded that appellant should be granted probation. How may we give effect to that conclusion and intent? By reading the order according to its proper spirit under the law and not by its letter. Thus read the order, in my opinion, means that appellant should engage in every feasible, honest, and strenuous endeavor within his power to make restitution to those whom he had despoiled, and that, if he exerted that endeavor, whether he failed to make the mere monetary reparation or not, either in whole or in part, he should depart unwhipped of justice further. If read in any other manner, the order seems twin to the demand for the pound of flesh from an harassed Antonio, and as such it could not have stood, if assailed.
It is trite to say that the law does not require impossibilities. It must be equally true that a judge cannot justly require impossibilities as a condition upon which probation is to be granted. The judge having made the grant, and the record showing as it does that appellant found, after commendable effort, that the condition was impossible of performance, appellant should not be deprived of the grant. This special reason demands that a spirit be found behind the letter of the grant.
IRA F. THOMPSON, J.
I concur in the opinion of Justice STEPHENS and also in the concurring opinion of Presiding Justice WORKS.