Opinion
A. Brigham Rose and George A. Westover, San Diego, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.
SHEPARD, Justice.
This is an appeal from a judgment of conviction of forgery and also from nonappealable orders which will be dismissed. (Pen.Code sec. 1237.)
FACTS
On August 9, 1956, defendant, Edward L. Arguello, in person and through his attorney, George A. Westover, entered a plea of guilty to forgery (violation of Pen.Code sec. 470) in the Municipal Court and the matter was certified to the Superior Court. On August 13, 1956, defendant and his counsel, Westover, appeared in the Superior Court before Judge Gerald C. Thomas and defendant entered a plea of guilty. At that time judge John A. Hewicker, regularly assigned to the criminal calendar, was on vacation and Judge Thomas was temporarily acting in his place. On August 28, 1956, defendant and his attorney appeared before Judge Thomas, who sustained imposition of sentence and defendant was placed on probation for three years on condition that he make restitution and that he be confined for six months in the custody of the sheriff with three months suspended.
On April 23, 1958, defendant was present with his attorney Westover, when his probation was modified by Judge John A. Hewicker. It was ordered that defendant serve the next six months in the custody of the sheriff, pay a fine of $150.00 after restitution had been paid, and that probation be extended for an additional four years, or until August 27, 1963. On June 6, 1960, defendant appeared at his probation hearing without counsel. Judge Hewicker advised defendant he was entitled to an attorney but defendant consented to proceed without counsel. Defendant was ordered to spend 60 days in the custody of the sheriff and his probation was extended for an additional five years or until August 26, 1968.
Proceedings to revoke defendant's probation were set for April 13, 1962. On April 3, defendant filed an 'Affidavit of Disqualification Pursuant to Sec. 170.6, CCP, of Judge John A. Hewicker.' Attorney A. Brigham Rose appears for the first time as defendant's co-attorney or record on said affidavit. The affidavit uses only generalized terminology and sets forth no probative material nor even suggests the occurrence of any fact which would support the bald allegation of prejudice. It is not contended that it is valid under any other section than the one above noted.
On April 13, 1962, with the defendant and his co-counsel Westover and Rose present, Judge Hewicker struck the affidavit, revoked defendant's probation and committed defendant to State prison.
Defendant appeals from: 1) the order striking the affidavit; 2) 'the assumption on the part of the said judge to acquire jurisdiction over this defendant in this case for any purpose'; 3) the order revoking probation; and 4) the judgment.
The first three appeals will be dismissed (Pen.Code 1237). There is no appeal from an order striking a petition for disqualification, (Keating v. Superior Ct., 45 Cal.2d 440, 443, 289 P.2d 209; Elliott v. Superior Ct., 180 Cal.App.2d 894, 896, 5 Cal.Rptr. 116; or from an order revoking probation. (People v. Adkins, 165 Cal.App.2d 29, 31, 331 P.2d 195.) After defendant pleads guilty there can be no appeal on the merits but his contention will be reviewed on the appeal from the judgment. (Stephens v. Toomey, 51 Cal.2d 864, 871[8, 13], 338 P.2d 182.)
DEFENDANT GUILTY OF FELONY
Defendant contends he was adjudged guilty of only a misdemeanor in that he was sentenced to six months in the county jail with three months suspended. With this we cannot agree. Defendant 'Forgery is punishable by imprisonment in the State prison for not less than one year nor more than fourteen years, or by imprisonment in the county jail for not more than one year.'
Penal Code sec. 17 provides,
'A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. * * *'
From the record in this case it is clear that on August 28, 1956, imposition of sentence was suspended and defendant was given probation on condition of serving six months in the county jail with three months suspended.
The defendant seizes one clause of one sentence of the clerk's minutes upon which to contend that the defendant was given a misdemeanor judgment. The sentence involved reads,
'The defendant is sentenced to six months in the county jail, 3 months of which is to be suspended in accordance with the terms of the probation more fully set out in the probation order of this date.'
At first blush the clerk's interpretation of the order would seem to support defendant's contention. But the defendant ignores the last portion of the sentence. The probation order referred to in the minutes clearly and unequivocally says that 'imposition of sentence * * * is hereby suspended for the terms of three (3) years. * * *' The record of all the proceedings had prior to the proceeding here under dispute shows the defendant and his regular counsel and the original trial judge clearly understood that the imposition of judgment was suspended.
As stated in People v. Robinson, 184 Cal.App.2d 69, 79, 7 Cal.Rptr. 202, 209,
'Defendant next contends that his prior conviction was in reality only a misdemeanor and not a felony. Upon being convicted of receiving stolen property, proceedings were suspended and defendant was placed on three years' probation. Proceedings having been suspended after his plea of guilty to an offense which is punishable either as a felony or a misdemeanor, the offense stands as a felony, absent a judgment, and no judgment was pronounced.'
As a condition of probation, defendant was ordered to serve three months in the county jail. Defendant argues that this is a sentence. We do not agree. Confinement as a condition of probation does not constitute a judgment or a sentence within the meaning of said Section 17. (People v. Smith, 195 Cal.App.2d 735, 737-738[1-3], 16 Cal.Rptr. 12; In re Martin, 82 Cal.App.2d 16, 22, 185 P.2d 645; In re Goetz, 46 Cal.App.2d 848, 851, 117 P.2d 47.) On April 13, 1962, defendant's probation was revoked and he was committed to state prison. Defendant stands convicted of a felony before as well as after judgment. (People v. Banks, 53 Cal.2d 370, 381-383, 386-387, 1 Cal.Rptr. 669, 348 P.2d 102.)
EXTENDING AND REVOKING PROBATION
Defendant also contends that the judge had no authority to extend or revoke defendant's probation. The court was within its proper authority to extend defendant's probation when he did not fulfill its conditions (Pen.Code sec. 1203.3; In re Davis, 150 Cal.App.2d 790, 792[1-2], 310 P.2d 1031), and it had authority to revoke his probation. (People v. Slater, 152 Cal.App.2d 814, 816[1, 2], 313 P.2d 111.) STRIKING OF AFFIDAVIT OF PREJUDICE
Defendant contends that Judge Hewicker was without authority to strike the affidavit of prejudice. The record clearly shows that Judge Hewicker had previously heard the matter of defendant's probation at least two times before he revoked it on April 13, 1962. Judge Hewicker modified defendant's probation on April 23, 1958 and June 6, 1960. While Judge Hewicker was not the judge who originally granted probation, the record shows he had been the only judge acting on the case since April 1958, or over four years, and was in the best possible position to pass on it. During this four years, defendant raised no question of prejudice. The affidavit filed April 3, 1962, against Judge Hewicker, was not timely and was properly stricken. (Code Civ.Proc. 170.6; Jacobs v. Superior Court, 53 Cal.2d 187, 191[5-6], 1 Cal.Rptr. 95, 347 P.2d 9; Michaels v. Superior Court, 184 Cal.App.2d 820, 824-826[1 a & 1 b], 7 Cal.Rptr. 858. See also People v. Smith, 196 Cal.App.2d 854, 856-857, 17 Cal.Rptr. 330.)
The appeals from the orders other than the judgment are dismissed.
The judgment is affirmed.
GRIFFIN, P.J., and COUGHLIN, J., concur.