Opinion
Rehearing Denied Aug. 28, 1929
Hearing Granted by Supreme Court Oct. 14, 1929
Application by the People of the State of California for a writ of mandate, prayed to be directed to the Superior Court of the State of California, in and for the County of Imperial, and another, to require the respondent court to enforce a judgment. Writ granted.
COUNSEL
U.S. Webb, Atty. Gen., John L. Flynn, Deputy Atty. Gen., Elmer W. Heald, Dist. Atty., and Edward W. Patterson, Deputy Dist. Atty., both of El Centro, for the People.
Hickcox, Trude & Johnson, of El Centro, and Edgar B. Hervey, of San Diego, for respondents.
R.B. Whitelaw and Utley & Nuffer, all of El Centro, for defendant Maggio.
OPINION
CONREY, P.J.
By information filed in respondent court (case No. 1959) one Salvadore Maggio was charged with the crime of manslaughter, committed on the 12th day of November, 1927. His plea of guilty was entered on the 21st day of May, 1928, and he applied for probation. On the 1st day of June, 1928, the matter of sentence and application for probation came on for hearing. The court pronounced sentence of imprisonment in the state prison, but granted the application for probation and suspended the execution of the sentence. Thereafter the people moved said superior court for an order vacating the order granting probation, and for an order directing the issuance of the commitment, and for such other proceedings as are required by law to put into effect the judgment. This motion was denied on the 15th day of March, 1929. The people then filed their petition in this court, pursuant to which the alternative writ of mandate has been issued.
Prior to the time when judgment was pronounced and the order of probation made in said action No. 1959, the defendant had been convicted of a felony, and that fact was presented to and considered by the court in connection with the application for probation in case No. 1959. The history of said former action and conviction, and the status of the same as it was on the 1st day of June, 1928, are set forth in People v. Superior Court (Civil No. 6570) 88 Cal.App. __, 280 P. 202, in which the decision of this court has been this day filed.
Section 1203 of the Penal Code contains the provisions of law under which admission to probation in criminal cases is authorized. That section, as amended in 1927 (St.1927, p. 1493), was in force at the time of the proceedings to which we have referred. It is therein provided that, after the conviction by plea or verdict of guilty of a public offense, in cases where discretion is conferred on the court, the court may, under the circumstances indicated in the section, place the defendant on probation; but the authority so given is qualified as follows: "Further provided, however, that probation shall not be granted to any defendant *** unless the court shall be satisfied that he has never in any place been previously convicted of a felony. ***" In view of the facts to which we have referred, showing that it was then and there well known to the court that the defendant had been convicted of a felony, it seems to us that the conclusion is imperative that in said action No. 1959, as well as in the other action, the court was without authority to admit the defendant to probation.
Let the peremptory writ issue.
We concur: HOUSER, J.; YORK, J.