People v. Kuhlman , 86 Cal. App. 2d 566 ( 1948 )

WOOD, J.

Defendant Cabell pleaded guilty to a charge of violation of section 337a, subdivision 2, of the Penal Code, a felony, which offense is commonly known as “bookmaking.” On February 25, 1947, she was sentenced to imprisonment in the county jail for six months, execution of sentence was suspended, and she was granted probation for the period of three years upon condition that she pay a fine of $1,000. On March 17, 1947, the terms of probation were modified to permit defendant to pay the fine at the rate of $50 a month. On September 22, 1947, the court, in the presence of defendant, made an order revolting the order granting probation, for the reason that defendant had failed to make payments on the fine. Defendant appeals from that order.

Appellant’s contention, that the fine of $1,000 is in excess of the maximum fine which the court had the power to impose as a condition of probation herein, is sustained. Section 337a of the Penal Code prescribes that the punishment for violation of that section is imprisonment of not less than 30 days and not exceeding one year. That section does not prescribe a fine as punishment. Section 672 of the Penal Code, however, provides as follows: “Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding two hundred dollars, in addition to the imprisonment prescribed.” Section 1203.1 of the Penal Code provides, in part, as follows: “The court ... in the order granting probation and as a condition thereof . . . may fine the defendant in such sum not to exceed the maximum fine provided by law in such case. ...” That section 1203.1 also provides that the court, in granting probation “may impose and require any or all of the above mentioned terms of imprisonment, fine and conditions and other reasonable conditions. ...” The court, therefore, had the power to impose a fine as a condition of probation, but the amount of a fine which may be so imposed, for violation of section 337a, is prescribed by section 672 and may not exceed $200.

Appellant also contends, in effect, that the condition of probation, whereby she was fined $1,000, was void, and that her failure to make the payments thereon as directed was not, therefore, a violation of probation. Such contention is not sustainable. The fine, as a condition of probation, was valid to the extent of $200. At the time probation was revoked, the following statements were made: “The Court: Why haven’t you kept up these payments 1 The Defendant: I haven’t the money. The Court: I was told at the time we modified the order that you could make the payment of $50.00 a month. The Defendant: That was with the understanding that the party I worked for was to pay it. The Court: I don’t know of any understanding, all we know was that you agreed to make the payments.” It does not appear that she made any payment, and it is not contended by appellant that she paid $200 or that she paid any amount. It appears from the statement of appellant, at the time probation was revoked, that she never intended to pay any part of the fine, and it appears, on the contrary, that she was depending on some other bookmaker to pay it. The appellant failed to make the payments on the valid portion of the fine, and thereby violated a condition of probation.

Appellant’s further contention, that the order revoking probation was arbitrary and without just cause, is not sustained. There is no finality to an order granting probation, and the imposition of a fine as a condition of probation is not a judgment imposing a fine. (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].) Section 1203.2 of the Penal Code provides that “at any time during the probationary period” the court is authorized to revoke an order for probation if there is reason to believe from the report of the probation officer, or otherwise, that the defendant has violated the terms of his probation. “The discretion of the court to revoke an order of probation is ‘very broad. ’ ” (People v. Silverman, 33 Cal.App.2d 1, 5 [92 P.2d 507].) As above shown, it appears that appellant did not intend to comply with the condition imposed.

The order is affirmed.

McComb, J. assigned, concurred.