People v. Arguello , 59 Cal. 2d 475 ( 1963 )

McCOMB, J.

Defendant appeals from a judgment of conviction of forgery.

Facts: August 13, 1956, defendant entered a plea of guilty to forgery (violation of Pen. Code, § 470) and filed an applieation for probation. August 28, 1956, the date set for judgment and/or probation hearing, defendant appeared with his attorney and was ordered to serve six months in the county jail, with the last three months suspended during three years of probation.¹

April 13, 1962, defendant appeared with counsel before the trial court on a probation hearing, after which the court made an order revoking defendant’s probation and arraigned him for judgment on the original charge to which he had pleaded guilty in 1956. Thereafter the court rendered judgment and sentenced defendant to confinement in the state prison for the term prescribed by law (one to fourteen years), with a recommendation that he serve more than the minimum sentence.

Defendant contends that the action taken by the trial court on August 28, 1956, constituted rendition of a final judgment of conviction and the imposition of sentence therefor, and that the court had no jurisdiction to render judgment and pronounce sentence against him on April 13, 1962, on his plea of guilty entered August 13, 1956.

This contention is correct. In granting probation after a conviction, the trial court may suspend the imposition of sentence, in which ease no judgment of conviction is rendered, or it may impose sentence and order the execution thereof stayed. In the latter case a judgment of conviction has been rendered. (In re Phillips, 17 Cal.2d 55, 58 [1] [109 P.2d 344, 132 A.L.R. 644].)

The following documents show that a judgment was rendered and sentence imposed against defendant on August 28,1956 :

(1) The record of the action, under date of August 28, 1956, reads as follows:

“Probation V 3 ys. Granted V Denied

“Judgment 6 mos. County Jail—3 mo. suspended.”

(2) The minutes of the court for August 28, 1956, read as follows:

“No. 208036 People vs. Edward Louis Arguello

“This being the time set for the probation hearing in the above matter comes [sic] now . . . [naming District Attorney, defendant, and his counsel]. Probation is by the Court granted. The defendant is sentenced to six months in the County Jail, 3 months of which is to he suspended in accordance with the terms of the probation more fully set out in the probation order of this date.” (Italics added.)

(3) A two-page printed and typewritten form, dated, signed, and filed August 28, 1956, entitled “Commitment to Sheriff,” provides on the first page (after reciting an arraignment and a finding of guilty) that defendant was asked if he had any legal cause to show why judgment should not be pronounced; that he stated he had none; that the court found none; and that “thereupon the Court rendered its judgment . . . that the said Edward Louis Arguello be punished by imprisonment in said adult detention facility of the County of San Diego, State of California . . . for the term of Six Months with three months suspended.” (Italics added.)

The page concludes with a certification by the deputy clerk wherein he states that the “foregoing” is “a full, true and correct copy of the judgment duly made and entered in the Minutes of” the court; that he had compared the same with the original; and that the same is a transcript therefrom and the whole thereof.

The document omits all mention of suspension of imposition of sentence and fails to mention probation in any manner. It is clear, however, from the reporter’s transcript that the court granted probation. Therefore, the reference to suspension of three months of the six-months sentence must be deemed a reference to probation in connection with a final sentence already pronounced. (Cf. In re Herron, 217 Cal. 400, 404 [2] [19 P.2d 4]; People v. Rickson, 112 Cal.App.2d 475, 481 [10] [246 P.2d 700] ; United States Fid. & Guar. Co. v. Justice Court, 99 Cal.App.2d 683, 687 [222 P.2d 292] [hearing denied by the Supreme Court].)

Since it is clear that judgment was rendered and sentence imposed upon defendant on August 28, 1956, the court lacked jurisdiction to render judgment and pronounce sentence against him on April 13, 1962, on his plea of guilty entered August 13, 1956. (Pen. Code, § 1203.2; In re Loros, 48 Cal.App.2d 680, 681 [120 P.2d 69].)

In view of our conclusions, it is unnecessary to discuss other points raised by defendant.

The judgment is reversed.

Gibson, C. J., Traynor, J., Peters, J., Tobriner, J., and Peek, J., concurred.

1 At further probation hearings held April 23, 1958, and June 6, 1960, the period of probation was purportedly extended for a total of an additional nine years.