In Re Levi, 244 P.2d 403 (Cal. 1952). · Go Syfert
Search
In Re Levi, 244 P.2d 403 (Cal. 1952). Cases Citing This Book View Copy Cite
272 citation events (32 in the last 25 years) across 8 distinct courts.
Strongest positive: People v. Wagner (cal, 2009-03-09)
Treatment trajectory · 1952 → 2026 · click a year to view as-of
1952 1989 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (rule) People v. Wagner
Cal. · 2009 · confidence medium
(In re Levi (1952) ... 39 Cal.2d 41, 45-46 [ 244 P.2d 403 ] . . . .)” (People v. Banks (1959) 53 Cal.2d 370, 386-387 [ 1 Cal.Rptr. 669 , 348 P.2d 102 ]; see also Boles v. Superior Court, supra, 37 Cal.App.3d at pp. 483-484.) By its plain language, section 1381 appears to apply to incarcerated probationers facing a probation revocation based on the subsequent conviction that led to the current incarceration.
discussed Cited as authority (rule) People v. Wilen
Cal. Ct. App. · 2008 · confidence medium
J.) [“Pronouncement of judgment ... is a critical stage in the criminal prosecution when the constitutional rights ‘to appear and defend, in person and with counsel’ [citation] apply, and a judgment pronounced in violation of those rights can be attacked by habeas corpus.” (Italics added.)]; In re Levi (1952) 39 Cal.2d 41, 45 [ 244 P.2d 403 ] (maj. opn. of Traynor, J.) [“With certain exceptions not applicable here [citations], judgment and sentence in felony cases may be imposed only in the presence of the accused. *288 If judgment is pronounced in his absence, and no justifying circ…
discussed Cited as authority (rule) People v. Zackery
Cal. Ct. App. · 2007 · confidence medium
(People v. Smith (2001) 24 Cal.4th 849, 854 [ 102 Cal.Rptr.2d 731 , 14 P.3d 942 ] [an unauthorized sentence may be corrected at any time whether or not there was an objection below].) IV Clerical Errors in Minutes of Sentencing “With certain exceptions not applicable here [citations] judgment and sentence in felony cases may be imposed only in the presence of the *387 accused.” (In re Levi (1952) 39 Cal.2d 41, 45 [ 244 P.2d 403 ].) Thus, section 1193 provides in pertinent part, “Judgment upon persons convicted of commission of crime shall be pronounced as follows: [f] (a) If the convicti…
discussed Cited as authority (rule) In re Williams
Cal. Ct. App. · 2000 · confidence medium
In other words, the trial court was required to afford petitioner his constitutional due process rights. (7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 502(b), pp. 694-695.) In re Levi (1952) 39 Cal.2d 41, 45 [ 244 P.2d 403 ], declares that “. . . judgment and sentence in felony cases may be imposed only in the presence of the accused.
discussed Cited as authority (rule) People v. Rose
Cal. Ct. App. · 1996 · confidence medium
(People v. Taylor (1993) 19 Cal.App.4th 836, 840 [ 23 Cal.Rptr.2d 846 ]; People v. Hernandez (1988) 199 Cal.App.3d 768, 773 [ 245 Cal.Rptr. 156 ].) Citing In re Levi (1952) 39 Cal.2d 41, 45 [ 244 P.2d 403 ], and numerous California Court of Appeal cases, the appellate court in People v. Lindsey (1969) 275 Cal.App.2d 340, 342-343 [ 79 Cal.Rptr. 880 ], stated it was the well-settled rule in a criminal case that when a trial court had made an order on a motion for new trial it had no jurisdiction thereafter to reconsider its order.
discussed Cited as authority (rule) People v. McGee
Cal. Ct. App. · 1991 · confidence medium
(In re Levi (1952) 39 Cal.2d 41, 45 [ 244 P.2d 403 ]; People v. Hernandez (1988) 199 Cal.App.3d 768,771-773 [ 245 Cal.Rptr. 156 ].) Although we do not agree with the new trial analogy, we conclude that the court acted without jurisdiction to reconsider and to set aside its previous ruling.
discussed Cited as authority (rule) People v. Snyder (2×)
Cal. Ct. App. · 1990 · confidence medium
We agree. (3a) It is well established that subject to limited exceptions not applicable here, [5] "`"`[o]nce a motion *490 for a new trial has been ruled upon in a criminal case and an order made either granting or denying such application ... the court is without authority to entertain a subsequent motion the object of which is to change or vacate its former order.'"' [Citations.]" ( People v. Lindsey (1969) 275 Cal. App.2d 340, 343 [ 79 Cal. Rptr. 880 ].) The California Supreme Court has consistently reached the same conclusion (see, e.g., In re Levi (1952) 39 Cal.2d 41, 45 [ 244 P.2d 403 ];…
discussed Cited as authority (rule) In Re Markaus
Cal. Ct. App. · 1989 · confidence medium
In its application of rule 31, our Supreme Court has generally begun to count the time to file a notice of appeal from the oral pronouncement of judgment in open court. [6] (See, e.g., People v. Howerton (1953) 40 Cal.2d 217, 218 [ 253 P.2d 8 ]; In re Levi (1952) 39 Cal.2d 41, 46 [ 244 P.2d 403 ]; People v. Slobodion (1947) 30 Cal.2d 362, 363 [ 181 P.2d 868 ].) In at least one case, the Supreme Court has started the time to appeal from an order denying a motion upon the oral denial in open court.
discussed Cited as authority (rule) Trinity County Department of Social Services v. Cynthia V.
Cal. Ct. App. · 1989 · confidence medium
In its application of rule 31, our Supreme Court has generally begun to count the time to file a notice of appeal from the oral pronouncement of judgment in open court. 6 (See, e.g., People v. Howerton (1953) 40 Cal.2d 217, 218 [ 253 P.2d 8 ]; In re Levi (1952) 39 Cal.2d 41, 46 [ 244 P.2d 403 ]; People v. Slobodion (1947) 30 Cal.2d 362, 363 [ 181 P.2d 868 ].) In at least one case, the Supreme Court has started the time to appeal from an order denying a motion upon the oral denial in open court.
discussed Cited as authority (rule) People v. Stewart
Cal. Ct. App. · 1988 · confidence medium
(People v. Hernandez, supra, 199 Cal.App.3d at p. 771 ; People v. Lindsey, supra, 275 Cal.App.2d at p. 343 ; People v. Paysen (1932) 123 Cal.App. 396, 399 [ 11 P.2d 431 ]; People v. Collins (1950) 97 Cal.App.2d 552, 554-555 [ 218 P.2d 87 ].) The basis for this conclusion appears to be the Supreme Court cases of People v. Martin, supra, 199 Cal. 240, 242 , and In re Levi (1952) 39 Cal.2d 41, 45 [ 244 P.2d 403 ].
examined Cited as authority (rule) People v. Kriss (3×)
Cal. Ct. App. · 1979 · confidence medium
If judgment is pronounced in his absence, he is deprived of these rights.” ( 39 Cal.2d 41 at p. 45, citations omitted.) 5 To those rights might be added the consideration that the defendant might be able to mitigate his sentence by making appropriate comments to the judicial officer, a common occurrence in sentencing traffic violators.
discussed Cited as authority (rule) Boles v. Superior Court
Cal. Ct. App. · 1974 · confidence medium
(In re Larsen (1955) 44 Cal.2d 642, 646 [ 283 P.2d 1043 ]; In re Levi (1952) 39 Cal.2d 41, 44 [ 244 P.2d 403 ]; In re Davis (1951) 37 Cal.2d 872, 873 [ 236 P.2d 579 ].) All that is necessary to give the prison authority the right to his custody is for the court to declare that probation is revoked and to issue its commitment.
cited Cited as authority (rule) In re Pickett
Cal. Ct. App. · 1972 · confidence medium
(In re Levi, supra, 39 Cal.2d 41, 45 [ 244 P.2d 403 ].) Moreover a defendant has a right to appeal from the judgment.
discussed Cited as authority (rule) People v. Harrison
Cal. Ct. App. · 1970 · confidence medium
Code, § 2900.1; In re Levi (1952) 39 Cal.2d 41, 47 [ 244 P.2d 403 ].) Dictum in People v. Niles, supra, implying the applicability of Penal Code section 1191 (see p. 756 of 227 Cal.App.2d) was unnecessary to the decision, unsupported by case law, and we do not deem it to represent a correct exposition of sound law.
cited Cited as authority (rule) People v. Floyd
Cal. · 1969 · confidence medium
(Cf. In re Levi, 39 Cal.2d 41, 45-47 [ 244 P.2d 403 ].) The judgment is reversed, and the cause remanded for resentencing in accordance with the views expressed herein.
discussed Cited as authority (rule) People v. Lindsey
Cal. Ct. App. · 1969 · confidence medium
(In re Levi, 39 Cal.2d 41, 45 [ 244 P.2d 403 ].) The cases are numerous in holding that “ '" . . it is well settled in this state that when the trial court has made its order denying the motion for a new trial ‘the right to move for a new trial has thus been exercised and exha,usted. ’ [Citations omitted.] Once a motion for a new trial has been ruled upon in a criminal case and an order made eithér granting or denying such application, the only remedy for the party deeming himself aggrieved is by an appeal from such order, for the court is without authority to entertain a subsequent mot…
discussed Cited as authority (rule) In Re Solis
Cal. Ct. App. · 1969 · confidence medium
(In re Levi, 39 Cal.2d 41, 44 [ 244 P.2d 403 ]; In re Davis, 37 Cal.2d 872 [ 236 P.2d 579 ]; People v. Jones, 263 Cal.App.2d 818, 821-822 [ 70 Cal.Rptr. 13 ]; People v. Clements, 202 Cal.App.2d 284, 287 [ 20 Cal.Rptr. 766 ].) This being the state of the law, there was no violation of any constitutional rights of defendant in not providing him, in advance of the hearing, with a copy of the farm manager’s letter or the probation officer’s report.
cited Cited as authority (rule) People v. Guaracha
Cal. Ct. App. · 1969 · confidence medium
Code, § 2900.1; In re Levi (1952) 39 Cal.2d 41, 47 [ 244 P.2d 403 ].) “The petition for habeas corpus is granted to the extent necessary to afford petitioner the following relief.
discussed Cited as authority (rule) People v. Dyer
Cal. Ct. App. · 1969 · confidence medium
(See In re Levi, 39 Cal.2d 41, 47 [ 244 P.2d 403 ] ; People v. Havel, 134 Cal.App.2d 213, 218 [ 285 P.2d 317 ]; In re Roberts, 40 Cal.2d 745, 748-749 [ 255 P.2d 782 ]; In re James, 38 Cal.2d 302, 314 [ 240 P.2d 596 ]; People v. Rogers, 252 Cal.App.2d 1015, 1021 [ 61 Cal.Rptr. 48 ]; People v. Thatcher, 255 Cal.App.2d 830, 832 [ 63 Cal.Rptr. 492 ].) 6 We do note, however, that although section 2900.1 is not directly applicable, section 1203.1 is particularly significant.
cited Cited as authority (rule) In Re Helpman
Cal. Ct. App. · 1968 · confidence medium
Code, § 2900.1; In re Levi, 39 Cal.2d 41, 47 [ 244 P.2d 403 ].) Petitioner, however, served no prison time at all under the invalid 1964 judgment.
discussed Cited as authority (rule) People v. Vanella
Cal. Ct. App. · 1968 · confidence medium
(See In re Levi, 39 Cal.2d 41, 44 [ 244 P.2d 403 ]; People v. Walker, 215 Cal.App.2d 609, 612 [ 30 Cal.Rptr. 440 ]; Brown v. Kearney, 355 F.2d 199 .) Appellant incorrectly assumes that it was necessary for the People to establish that there was an affirmed conviction at the time of revocation.
cited Cited as authority (rule) People v. Jones
Cal. Ct. App. · 1968 · confidence medium
(In re Levi, 39 Cal.2d 41, 44 [ 244 P.2d 403 ]; People v. Wimberly, 215 Cal.App.2d 538, 550 [ 30 Cal.Rptr. 421 ].) If there is such a hearing the formal fules of evidence do not apply.
discussed Cited as authority (rule) People v. Smyers
Cal. Ct. App. · 1968 · confidence medium
His constitutional right to counsel applied at that stage of the criminal proceedings (see In re Levi, 39 Cal.2d 41, 46 [ 244 P.2d 403 ]) and unlike the situation in In re Fresquez, 67 Cal.2d 626, 634 [ 63 Cal.Rptr. 271 , 432 P.2d 959 ], at no time prior to such arraignment for judgment did he voluntarily waive this right.
discussed Cited as authority (rule) In Re Ricks
Cal. Ct. App. · 1968 · confidence medium
(See People v. Thatcher, 255 Cal.App.2d 830, 832-833 [ 63 Cal.Rptr. 492 ]; In re Masching, 41 Cal.2d 530, 534 [ 261 P.2d 251 ]; In re Roberts, 40 Cal.2d 745, 748-749 [ 255 P.2d 782 ]; In re Levi, 39 Cal.2d 41, 47 [ 244 P.2d 403 ]; In re James, 38 Cal.2d 302, 314 [ 240 P.2d 596 ].) As previously stated, petitioner began serving his term in case number 250655 on January 30, 1962, and was released on parole June 7, 1965.
discussed Cited as authority (rule) People v. Moore
Cal. Ct. App. · 1968 · confidence medium
(Compare In re Levi, 39 Cal.2d 41, 45 [ 244 P.2d 403 ] ; People v. Martin, 199 Cal. 240, 242 [ 248 P. 908 ] with People v. Risenhoover, 240 Cal.App.2d 233 [ 49 Cal.Rptr. 526 ] ; and People v. Hensel, 233 Cal.App.2d 834, 837-838 [ 43 Cal.Rptr. 865 ].) Of course, if there was no jurisdiction to entertain the motion, it cannot be said that the court’s reconsideration of the evidence under proper guidelines cleansed the record of the previous error.
discussed Cited as authority (rule) People v. Thatcher
Cal. Ct. App. · 1967 · confidence medium
(See In re Roberts, 40 Cal.2d 745, 748-749 [255 *829 P.2d 782]; In re Levi, 39 Cal.2d 41, 47 [ 244 P.2d 4031 ; In re James, 38 Cal.2d 302, 314 [ 240 P.2d 596 ].) Defendant-respondent’s motion to strike the order allowing augmentation of the record and the transcript of oral proceedings taken at the time of the order granting probation is denied.
discussed Cited as authority (rule) In re Griffin
Cal. · 1967 · confidence medium
(In re Levi (1952) 39 Cal.2d 41, 44 [ 244 P.2d 403 ] ; In re Davis (1951) 37 Cal.2d 872, 874-875 [ 236 P.2d 579 ].) It could then have continued the matter to a suitable time for hearing, for when imposition of sentence has been suspended judgment can be pronounced at any time after the timely revocation of probation.
discussed Cited as authority (rule) People v. Rogers
Cal. Ct. App. · 1967 · confidence medium
Before judgment could be pronounced-the defendant had the right to be present with counsel in order that he might have the opportunity to show cause why judgment should not be pronounced (In re Levi, 39 Cal.2d 41, 45 [ 244 P.2d 403 ]; In re Klein, 197 Cal.App.2d 58, 62 [ 17 Cal.Rptr. 71 ]), unless such right had been waived in' the manner provided by section 1203.2a of the Penal, Code. - The defendant made no request in writing in the manner provided by the foregoing section that judgment be pronounced in his absence and without his being represented by counsel.
discussed Cited as authority (rule) In Re Smiley
Cal. · 1967 · confidence medium
The former inquiry turns ordinarily on an abstract consideration of the law governing that stage in any case tried in the same jurisdiction (see, e.g., In re Levi (1952) 39 Cal.2d 41, 45-46 [ 241 P.2d 403 ]), and does not authorize unbridled speculation as to what benefit an attorney might have been to the particular defendant in the particular case before the court. 15 The virtually identical provision of the Sixth Amendment to the United States Constitution has been declared applicable to the states through the Fourteenth Amendment.
discussed Cited as authority (rule) People v. Santos
Cal. Ct. App. · 1966 · confidence medium
Counsel argues that since defendant could neither read nor write English, he would be considered to be of “dull mentality,” thereby rendering ineffective his attempted waiver of counsel, as well as unduly handicapping his efforts to defend himself, citing In re Levi, 39 Cal.2d 41, 47 [ 244 P.2d 403 ], A conclusion of “dull mentality,” however, does not necessarily follow from illiteracy in English.
discussed Cited as authority (rule) In Re Perez
Cal. · 1966 · confidence medium
(In re Levi (1952) 39 Cal.2d 41, 46 [ 244 P.2d 403 ]; In re Roberts (1953) 40 Cal.2d 745, 748 [ 255 P.2d 782 ]; In re Boyce (1959) 51 Cal.2d 699 [ 336 P.2d 164 ] ; In re Klein (1961) 197 Cal.App.2d 58, 63 [ 17 Cal.Rptr. 71 ].) There are substantial reasons for the presence of accused and the aid of counsel at the pronouncement of judgment.
cited Cited as authority (rule) Williams v. Commonwealth
Mass. · 1966 · confidence medium
In re Levi, 39 Cal.2d 41, 44 (probation).
cited Cited as authority (rule) Williams v. Commonwealth
Mass. · 1966 · confidence medium
In re Levi, 39 Cal. 2d 41, 44 (probation).
discussed Cited as authority (rule) In Re Grayson
Cal. Ct. App. · 1966 · confidence medium
(In re Levi, 39 Cal.2d 41, 45 [ 244 P.2d 403 ]; People v. De Waele, 224 Cal.App.2d 512, 515 [ 36 Cal.Rptr. 825 ].) If the defendant is represented by counsel or has made an effective waiver, omission of the inquiry is only an error of law, not necessarily prejudicial.
discussed Cited as authority (rule) People v. Ware
Cal. Ct. App. · 1966 · confidence medium
(In re Levi, 39 Cal.2d 41, 45 [ 244 P.2d 403 ]; People v. De Waele, 224 Cal.App.2d 512 [ 36 Cal.Rptr. 825 ].) It is elemental, too, that the right to counsel includes an opportunity for counsel to consult with his client and to make reasonable preparations.
cited Cited as authority (rule) People v. Silva
Cal. Ct. App. · 1966 · confidence medium
(I n re Levi, 39 Cal.2d 41, 44, 46 [ 244 P.2d 403 ] ; In re Klein, 197 Cal.App.2d 58, 63 [ 17 Cal.Rptr. 71 ]).
discussed Cited as authority (rule) People v. Risenhoover (2×)
Cal. Ct. App. · 1966 · confidence medium
(People v. Walker, 142 Cal. 90 [ 75 P. 658 ]; People v. Fice, 97 Cal. 459, 460 [ 32 P. 531 ]; People v. Martin, 199 Cal. 240 [ 248 P. 908 ]; In re Levi, 39 Cal.2d 41, 45 [ 244 P.2d 403 ]; People v. Paysen, 123 Cal.App. 396, 399 [ 11 P.2d 431 ]; People v. Ingersoll, 21 Cal.App. 763, 764 [ 132 P. 1052 ]; Vernon v. Rappaport, 25 Cal.App.2d 281, 283-294 [ 77 P.2d 257 ]; People v. Coronado, 57 Cal.App.2d 805, 813-815 [ 135 P.2d 647 ]; People v. Collins, 97 Cal.App.2d 552, 554-555 [ 218 P.2d 87 ]; 36 Cal.Jur.2d, New Trial, § 3, p. 129, § 168, pp. 380-381, § 170, pp. 383-384; Fricke, Criminal Proc…
discussed Cited as authority (rule) People v. Hensel
Cal. Ct. App. · 1965 · confidence medium
Preliminarily, the Attorney General argues that the trial court, having once denied a motion for a new trial, was without jurisdiction to vacate that order and entertain a new motion. 2 In support of this contention, he cites a footnote in In re Levi (1952) 39 Cal.2d 41, 45 [ 244 P.2d 403 ], and the case of People v. Paysen (1932) 123 Cal.App. 396 [ 11 P.2d 431 ].
discussed Cited as authority (rule) People v. Ector
Cal. Ct. App. · 1965 · confidence medium
Case No. 276368, [No. 10Í28] a violation, that will be a revocation of probation, and a concurrent sentence. ’ ’ Defendant’s contentions as to the lack of notice of hearing and right to a hearing as to the violation proceeding are answered by the established rule stated in In re Levi, 39 Cal.2d 41 at 44 [ 244 P.2d 403 ] : “There is neither a constitutional nor a statutory right to a hearing preceding revocation of probation.
discussed Cited as authority (rule) People v. De Waele
Cal. Ct. App. · 1964 · confidence medium
The constitutional right to counsel in “criminal prosecutions’’ is not applicable then because a probation proceeding is not a part of a “prosecution.’’ (In re Levi, 39 Cal.2d 41, 44 [ 244 P.2d 403 ]; In re Davis, 37 Cal.2d 872 , [ 236 P.2d 579 ]; In re Dearo, 96 Cal.App.2d 141 [ 214 P.2d 585 ].) Where probation is granted before the pronouncement of judgment and later is ordered revoked, defendant has the opportunity to challenge the regularity of the order when he is subsequently brought before the court and arraigned for judgment.
discussed Cited as authority (rule) People v. Natividad
Cal. Ct. App. · 1963 · confidence medium
(In re Levi, 39 Cal.2d 41, 44 [ 244 P.2d 403 ]; In re Dearo, 96 Cal.App.2d 141, 143 [ 214 P.2d 585 ].) It appears from the probation officer’s report in the instant case that after the defendant’s release from the county jail he was convicted of the offense of issuing a check without sufficient funds in Monterey County, California; was arrested and convicted of “Disorderly Conduct” in Portsmouth, Virginia; was arrested and convicted of a similar offense in Reno, Nevada; wrote and passed checks on nonexistent bank accounts while in Washington, D.C., in the total sum of $80; and presente…
discussed Cited as authority (rule) People v. Collins
Cal. Ct. App. · 1963 · confidence medium
Of course, the defendant is entitled to counsel at the time of arraignment for judgment, as held in In re Levi, 39 Cal.2d 41, 46 [ 244 P.2d 403 ], but this appellant had gotten rid of his attorney before the trial and gave no intimation of his desire for one at the time of sentencing.
discussed Cited as authority (rule) People v. Clark
Cal. Ct. App. · 1963 · confidence medium
“The court may revoke probation solely on the basis of the probation officer’s report.” (In re Levi, 39 Cal.2d 41, 44 [ 244 P.2d 403 ].) It is apparent from the record at bar that the probation officer had reported adversely upon petitioner’s desired continuance of probation.
discussed Cited as authority (rule) People v. Cross
Cal. Ct. App. · 1963 · confidence medium
That he has good cause to offer, either in arrest of judgment or for a new trial; ...” (See In re Levi, 39 Cal.2d 41, 45 [ 244 P.2d 403 ].) 4 On its own motion this court has had transmitted to it the file of the superior court (see Cal. Rules of Court, rule 12(a) * ) so that all of the record which was before the trial judge at the time of the determination of the matter of probation may be considered on this appeal. * Formerly Rules on Appeal, rule 12(a).
discussed Cited as authority (rule) People v. Wilson
Cal. Ct. App. · 1962 · confidence medium
(In re Bine, supra; Penal Code, § 1203.1.) Thus, “The court may revoke probation solely on the basis of the probation officer’s report.” (In re Levi, 39 Cal.2d 41, 44 [ 244 P.2d 403 ].) Although the court has a wide range of discretion in imposing or modifying the terms of probation, “it may not act arbitrarily or capriciously.” (In re Bine, supra, at p. 817.) However, here the court heard testimony for two days, during which defendant was represented at all times by counsel, and then not until after a report from the Medical Facility had been received and considered was his probati…
discussed Cited as authority (rule) People v. Garner (2×)
Cal. · 1961 · confidence medium
(In re Turrieta, 54 Cal.2d 816, 821-822 [ 356 P.2d 681 ] ; People v. Mattson, 51 Cal.2d 777, 790 [ 336 P.2d 937 ] ; In re Levi, 39 Cal.2d 41, 46-47 [ 244 P.2d 403 ] ; In re James, 38 Cal.2d 302, 310-313 [ 240 P.2d 596 ], and cases cited.) It has insisted that counsel have adequate opportunity to prepare the defense (In re Newbern, 53 Cal.2d 786, 790 [ 350 P.2d 116 ] ; Cornell v. Superior Court, 52 Cal.2d 99, 102-103 [ 338 P.2d 447 ] ; In re Ochse, 38 Cal.2d 230, 231 [ 238 P.2d 561 ] ; People v. Sarazzawski, 27 Cal.2d 7, 17 [ 161 P.2d 934 ]), expanded the scope of criminal discovery (People v. …
discussed Cited as authority (rule) In Re Klein (2×)
Cal. Ct. App. · 1961 · confidence medium
(In re Levi (1952) 39 Cal.2d 41, 44 [244 P.2d *63 403]; In re Davis (1951) 37 Cal.2d 872, 873 [ 236 P.2d 579 ]; People v. Fields (1948) 88 Cal.App.2d 30, 33 [ 198 P.2d 104 ].) The rendition of judgment and the imposition of sentence take place in an entirely different legal setting than the grant of probation.
discussed Cited as authority (rule) People v. Root
Cal. Ct. App. · 1961 · confidence medium
Code, § 1203.2, and In re Levi (1952), 39 Cal.2d 41, 44 [ 244 P.2d 403 ] ; see also the many cases cited in In re Davis (1951), 37 Cal.2d 872, 874 [ 236 P.2d 579 ].) Defendant relies, however, on In re Cook, 67 Cal.App.2d 20, 25 [ 153 P.2d 578 ], where the court, although holding that the defendant was not entitled to notice or a hearing on revocation of his probation, said, ‘1 On principle it would seem to be only proper and just that under the provisions of section 1203.2 notice and an opportunity to be heard should be granted a defendant before a suspended sentence or probation could be …
discussed Cited as authority (rule) In Re Turrieta
Cal. · 1960 · confidence medium
In fact, in our recent decisions on related issues wherein we have granted relief we have noted in doing so that there had been no prior waiver of counsel (In re Boyce, supra, 51 Cal.2d 699, 700 [ 336 P.2d 164 ] ; In re Roberts, supra, 40 Cal.2d 745, 748 [ 255 P.2d 782 ] ; In re Levi, supra, 39 Cal.2d 41, 47 [ 244 P.2d 403 ]), and on this point the cited cases are technically distinguishable.
discussed Cited as authority (rule) People v. Mason
Cal. Ct. App. · 1960 · confidence medium
Sections 1203.2 and 1203.3 of the Penal Code are in part set forth in the footnote. 1 *189 It was said in In re Levi, 39 Cal.2d 41, 44 [ 244 P.2d 403 ] as follows: “There is neither a constitutional nor a statutory right to a hearing preceding revocation of probation.
In re Troy M. Levi, on Behalf of EDDIE D. LEVI, on Habeas Corpus.
Crim. 5282.
California Supreme Court.
May 19, 1952.
244 P.2d 403
Traynor.
Published

[*43] David A. Fall for Petitioner.

Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and Winslow Christian, Deputy Attorney General, for Respondent.

TRAYNOR, J.

Troy Levi seeks a writ of habeas corpus on behalf of his brother, Eddie Levi, an inmate of the California Institution for Men at Chino. Eddie Levi, hereinafter referred to as petitioner, was committed for the offense of assault by means of force likely to produce great bodily harm. (Pen. Code, § 245.) He contends that his detention is unauthorized because his constitutional rights were violated in proceedings leading to his confinement.

He was arrested in June, 1950, after inflicting severe wounds on one Everett Sykes with a pocket knife. The cause was submitted on the transcript of the preliminary hearing and the trial court, sitting without a jury, found him guilty of assault with intent to commit murder. On September 27, 1950, after hearing his application for probation and motion for a new trial, the court denied his motion for a new trial, reduced the offense to assault by means of force likely to produce great bodily harm, ordered that proceedings be suspended, and placed him on probation for five years on condition that he serve one year in the county jail "with good time allowed." Approximately five days after his release from the county jail, he was arrested for intoxication and sentenced to four days in jail. The probation officer filed a report that he was not a suitable subject for probation and should be sentenced to prison. On September 5, 1951, the court revoked probation and pronounced judgment. Petitioner was sentenced to the state prison for the term prescribed by law for the offense of an assault by means of force likely to produce great bodily harm. The entire transcript of the proceedings on September 5th is set out in the footnote.[*]

[*44] Petitioner contends that his confinement is illegal on the grounds that he did not receive notice of the hearing preceding revocation of probation, that he was not represented by counsel at the hearing, and that he was not given the opportunity to summon witnesses in his behalf. Petitioner does not thereby show grounds for issuance of habeas corpus. [1] There is neither a constitutional nor a statutory right to a hearing preceding revocation of probation. (In re Davis, 37 Cal.2d 872, 873-874 [236 P.2d 579].) [2] If a hearing is held, it is not governed by the rules concerning formal criminal trials. [3] The court may revoke probation solely on the basis of the probation officer's report. (In re Dearo, 96 Cal. App.2d 141, 143 [214 P.2d 585].) There is no right to present witnesses. (People v. Hayden, 99 Cal. App.2d 97, 99 [221 P.2d 221].) [4] The constitutional right to have counsel in "criminal prosecutions" (art. I, § 13) is not applicable since a probation proceeding is not part of a "prosecution." (In re Dearo, supra, 96 Cal. App.2d 141, 143; People v. Fields, 88 Cal. App.2d 30, 33 [198 P.2d 104].)

Although the foregoing contentions are without merit, the record discloses a serious defect in the proceedings in the trial court. It will be recalled that this case is not one in which judgment was pronounced and execution of sentence suspended during probation. (Cf. In re Davis, supra; People v. Blankenship, 16 Cal. App.2d 606 [61 P.2d 352].) Instead, sentence and judgment were never imposed until the date of revocation of probation. The record shows that petitioner was not represented by counsel at that time, although the Constitution provides that "in criminal prosecutions, in any court whatever, the party accused shall have the right ... to appear[*45] and defend, in person and with counsel." (Art. I, § 13.) The question thus arises whether the fact that petitioner was not represented by counsel at the time of pronouncement of judgment requires that the judgment be set aside on habeas corpus.

5 With certain exceptions not applicable here (see In re Ralph, 27 Cal.2d 866, 872 [168 P.2d 1] [sentence following decision on appeal]; People v. Brown, 102 Cal. App.2d 60, 62-63 [226 P.2d 609] [sentence after exercising reasonable diligence to procure missing defendant and finding that it is in interest of justice to pronounce judgment in his absence]; People v. Weinstein, 298 Ill. 264, 268 [131 N.E. 631 [accused absconded after verdict]), judgment and sentence in felony cases may be imposed only in the presence of the accused. [6] If judgment is pronounced in his absence, and no justifying circumstances are shown, the judgment must be set aside. (People v. Brown, supra; People v. Fields, 88 Cal. App.2d 30, 33 [198 P.2d 104]; In re Klein, 75 Cal. App.2d 600, 603 [171 P.2d 471]; People v. Hawthorne, 63 Cal. App.2d 262, 264 [146 P.2d 517]; see People v. Williams, 24 Cal.2d 848, 853 [151 P.2d 244]; Staples v. Commonwealth, 140 Va. 583, 587 [125 S.E. 319]; Siegel v. State, 201 Wis. 12, 17 [229 N.W. 44]; cases collected in 24 C.J.S., Criminal Law, § 1574.)
7 A defendant has substantial rights at the time he is arraigned for judgment, because he may be able to show good cause why the judgment should not be pronounced against him. (Pen. Code, §§ 1200, 1201; see People v. Sarazzawski, 27 Cal.2d 7, 18 [161 P.2d 934]; People v. Hawthorne, 63 Cal. App.2d 262, 264 [146 P.2d 517]; People v. Megladdery, 40 Cal. App.2d 748 [106 P.2d 84]; People v. Prudencio, 93 Cal. App. 241, 246 [269 P. 698].) He may be able to show that there is good cause to believe that he is insane (Pen. Code, § 1201(1); see People v. Jackson, 105 Cal. App.2d 811, 814-815 [234 P.2d 261]), or that there is good cause to order a new trial (Pen. Code, §§ 1201(2), 1181),[**] or that there is good cause to grant a motion in arrest of judgment. (Pen. Code, §§ 1201(2), 1185.) If judgment is pronounced in his absence, he is deprived of these rights.

Some states hold that the right of an accused to be present[*46] in court when judgment is pronounced against him does not include the right to have counsel present at that time. (See 24 C.J.S., Criminal Law, § 1574a.) [8] In this state, however, it has been held that an arraignment for judgment is a "criminal prosecution" within the meaning of article I, section 13, and that an accused therefore has the right to counsel at the time of pronouncement of judgment. (People v. Fields, 88 Cal. App.2d 30, 33 [198 P.2d 104].) [9] The Fields case involved an appeal and is thus not directly in point, but we have concluded that a judgment pronounced in the absence of counsel is also vulnerable to attack by habeas corpus. It would be anomalous to hold that a defendant's personal presence is so important that he may set aside the judgment on collateral attack and yet to hold that the constitutional right to counsel is not of equal importance. A defendant's presence gives him an opportunity to show legal cause why judgment should not be pronounced against him. The average defendant, however, would be helpless to establish such cause without the aid of counsel. (See In re James, 38 Cal.2d 302, 309 [240 P.2d 596], and cases cited therein.) Moreover, a defendant has the right to appeal from the judgment. (Pen. Code, § 1237; In re Davis, 37 Cal.2d 872, 875 [236 P.2d 579].) When judgment is pronounced in the absence of counsel, there is danger that the defendant might allow the time for notice of appeal to run in ignorance of his rights, and thus lose his opportunity to obtain review of the judgment. (Rules on Appeal, rule 31; see People v. Slobodion, 30 Cal.2d 362, 365 [181 P.2d 868]; People v. Lewis, 219 Cal. 410, 413-414 [27 P.2d 73].)

The attorney general contends that the Fields case is in conflict with three earlier cases. (People v. Henry, 86 Cal. App.2d 785, 790 [195 P.2d 478]; People v. Hawthorne, 63 Cal. App.2d 262, 266 [146 P.2d 517]; People v. Swift, 140 Cal. App. 7 [34 P.2d 1041].) In the Swift case the defendant was represented by counsel at the time of pronouncement of judgment. In the Henry and Hawthorne cases the defendants were personally present at the time judgment was entered, but it cannot be ascertained from the opinions whether they were represented by counsel. The only question presented to the courts in those cases, however, was the effect of the failure of the trial court to arraign the defendants for judgment pursuant to Penal Code section 1200, a question not raised by petitioner in the present case.

10 The trial court did not inform petitioner that he had[*47] a right to counsel. It did not ask him if he had any legal cause to show why judgment should not be pronounced against him. It made no attempt to ascertain if he understood the pleas and defenses available under section 1201 of the Penal Code. The report of the probation officer is in the record and shows that petitioner has only a fifth grade education and is of "dull mentality." His failure to request counsel cannot therefore be amplified into a waiver of his right to counsel. (In re James, supra, 38 Cal.2d 302, 313; People v. Chesser, 29 Cal.2d 815, 824 [178 P.2d 761]; cf. In re Tedford, 31 Cal.2d 693, 695 [192 P.2d 3]; In re Jingles, 27 Cal.2d 496, 498 [165 P.2d 12].)

[11a] Petitioner has requested that he be "restored to liberty" if the writ is granted. Nothing in his petition or the record, however, shows that there is any defect in the adjudication of guilt. The error in the pronouncement of judgment does not require either his release or a new trial. (In re McCoy, 32 Cal.2d 73, 77 [194 P.2d 531]; In re Mize, 11 Cal.2d 22, 26-27 [77 P.2d 472]; People v. Fields, 88 Cal. App.2d 30, 33 [198 P.2d 104]; State ex rel. Shetsky v. Utecht, 228 Minn. 44, 54 [36 N.W.2d 126]; Staples v. Commonwealth, 140 Va. 583, 587 [125 S.E. 319].) [12] The delay since revocation of probation has not caused the trial court to lose jurisdiction to pronounce a valid judgment. (See People v. Williams, 24 Cal.2d 848, 854 [151 P.2d 244].) If petitioner should again be sentenced to prison, his confinement based upon the invalid judgment will be credited upon the new commitment. (Pen. Code, § 2900.1.)

[11b] The petitioner is discharged from the custody of the authorities at the California Institution for Men at Chino and committed to the custody of the sheriff of Los Angeles County with directions that petitioner be arraigned for pronouncement of judgment in accord with this opinion.

Gibson, C.J., Shenk, J., Edmonds, J., Schauer, J., and Spence, J., concurred.

CARTER, J.

I concur in the conclusion reached but since the holding of the majority is based in part upon In re Davis, 37 Cal.2d 872 [236 P.2d 579], in which I dissented, I withhold my approval from the portion of the decision of the court in this case which is supported by what I believe to be an erroneous holding in In re Davis, supra.

[*] Los Angeles, California, Wednesday, September 5, 1951, 10:52 a.m.

On the above date the defendant appeared in court In Propria Persona; the People being represented by William O. Russell, Deputy District Attorney of Los Angeles County; and also present, B.E. McEveety, Deputy Probation Officer; the following proceedings were had, to wit:

(August J. Goebel, Reporter.)

THE COURT: People v. Eddie D. Levi.

Mr. Levi, they tell me you have had some more trouble since you were out.

THE DEFENDANT: I went to Pedro to my brother's —

THE COURT: You got into some sort of a drunken brawl?

THE DEFENDANT: No. They say I was drunk.

THE COURT: Yes. Your wife has never come out here and your children are still back in Chicago, is that correct?

THE DEFENDANT: Sure.

THE COURT: Well, because of the serious nature of your offense and because the Court specifically admonished you that you were not under any circumstances to use intoxicating liquor and because you rewarded the consideration that was given you by going out and getting drunk within five days after your release, your probation is revoked.

It is the judgment and sentence of the Court that for the offense of Assault By Means of Force Likely To Produce Great Bodily Harm, that you be now confined in the state prison for the term prescribed by law.

You are remanded into the custody of the Sheriff to be by him delivered into the custody of the Department of Corrections to serve the sentence.

You are remanded to custody.

[**] In the present case, however, the fact that petitioner made a motion for a new trial following his conviction in 1950 would deprive the trial court of jurisdiction to entertain a second motion for a new trial at the time of pronouncement of judgment. (People v. Martin, 199 Cal. 240, 242 [248 P. 908]; People v. Collins, 97 Cal. App.2d 552, 554 [218 P.2d 87].)