Opinion
Hearing Granted by Supreme Court June 7, 1933.
Appeal from Superior Court, Los Angeles County; Fletcher Bowron, Judge.
Lester Hainline was convicted on an amended information charging burglary and prior conviction, and he appeals.
Affirmed. COUNSEL
W. C. Dalzell, of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and John D. Richer, Deputy Atty. Gen., for the People.
OPINION
YORK, Justice.
On March 28, 1927, appellant pleaded guilty to a charge of burglary and was granted probation. Later--on April 20, 1928--the defendant having served the term of his probation, was permitted to withdraw his plea of guilty and enter a plea of not guilty, and the court then dismissed the action, pursuant to section 1203 of the Penal Code.
Subsequently, to wit, in the late summer of 1932, appellant and one Don Guzman were jointly charged in an information filed by the district attorney of Los Angeles with the crime of burglary; said information containing two counts. Both offenses were committed in the year 1932. An amended information was later filed charging the same defendants with the same offenses, but adding a prior conviction to each count with respect to appellant. Both defendants were arraigned on the original information, whereupon appellant waived time to plead and entered a plea of not guilty and his trial was set for October 5, 1932. On that day the amended information was filed, which information as amended contained the charge of prior conviction, and appellant was arraigned thereupon and entered his plea of not guilty and denied the prior conviction. Appellant was tried separately on October 6th, and verdicts were returned finding him guilty on both counts of the information, and also finding the allegation as to the prior conviction to be true. This is an appeal from the judgment rendered on the said verdicts.
Appellant now contends that a defendant cannot be tried upon any charge as to which no evidence was offered at the preliminary hearing; that the state must make out a prima facie case as to each charge in the preliminary.
There is nothing in the record before this court to show all that took place at the preliminary hearing, and we are therefore in no position to pass upon the question as to whether or not there was sufficient evidence adduced at such hearing to bind appellant over for trial.
As his second point, appellant maintains that the dismissal of the prior action had the effect of completely removing the stigma of such conviction so that it could not be used against him as a prior conviction in the instant proceeding, and that this is so owing to the fact that appellant was granted probation prior to the amendment of section 1203, subsection 4 of the Penal Code, which reads as follows: "* * * Provided, that in any subsequent prosecution of such defendant for any other offense such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed." Stats. 1927, pp. 1493, 1496; effective July 29, 1927. Appellant claims, in other words, that his rights became vested at the time probation was granted to him, and that the mere fact that the dismissal occurred after this amendment to section 1203 was passed, would not change these rights.
Appellant’s right to a dismissal of the charge under section 1203 of the Penal Code vested at the time he completed the term of his probation and entered his plea of not guilty of the first offense. The defendant was given full advantage of the section. But the amendment to said section, which is hereinbefore quoted, was enacted before the probation was completed, or that action dismissed, as well as before defendant committed the later offenses. We fail to see why the defendant should be protected in any so-called right which would leave him free to commit another crime and which would prevent the court from considering the fact of his prior conviction of crime. No authority for a different conclusion has been cited to us.
Probation is not a right of a defendant. It is "an act of grace and clemency." People v. Payne, 106 Cal.App. 609, 289 P. 909, 911. On the 29th day of July, 1927, when the above-quoted amendment of section 1203 became effective, the defendant Hainline was the beneficiary of such an act of grace, but his conviction of felony was still in force, with the possibility of a judgment which later might have been entered against him. It should be conceded, of course, that if the conditions of his probation should continue unaltered and be fully performed by him, he would be entitled to withdraw his plea of guilty, and to enter a plea of not guilty, and to have that action dismissed. But there is not, in our opinion, any sound reason for holding that the said amendment of 1927 is not applicable to this defendant. "The act to be punished is, however, only that act done by the prisoner after the Code took effect; and, therefore, in no sense can the Code be said to become ex post facto when applied to the case of the prisoner. The true principle in this respect is well expressed by Judge Cooley in his invaluable work upon Constitutional Limitations, as follows: ‘And a law is not objectionable as ex post facto which, in providing for the punishment of future offenses, authorizes the offender’s conduct in the past to be taken into the account, and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense than for the first, and it has not been deemed objectionable that in providing for such heavier penalties the prior conviction authorized to be taken into account may have taken place before the law was passed. In such cases it is the second or subsequent offense that is punished, not the first,’ etc." Ex parte Gutierrez, 45 Cal. 429; People v. Rosencrantz, 95 Cal.App. 92, 272 P. 786. The fact of former conviction, though purged from the record, remained a fact, and when proved, as the present law allows, it becomes evidence of the offender’s conduct in the past; and this the law takes into account in estimating the punishment to be imposed for the present offense. This is not, in any way, an attempt to punish for the former crime.
"While there are decisions to the contrary, according to the weight of authority the fact that accused was pardoned for his prior offense does not exempt him from the increased punishment on a subsequent conviction." 16 Cor. Jur. 1342, and authorities there cited.
The judgment appealed from is affirmed.
We concur: CONREY, P. J.; HOUSER, J.