People v. Smith
THE PEOPLE, and v. C. ARNHOLT SMITH, and
- Area
- criminal
- Panel
- Robert O. Staniforth (author)
Analysis
The trial court extended the defendant's probation term by five years to retain jurisdiction to impose a custody condition that had been stayed pending appeal, and subsequently imposed that custody sentence. The Court of Appeal affirmed the judgment, holding that the trial court retained jurisdiction to impose the stayed custody condition upon the issuance of the remittitur despite the expiration of the original probation term, and that the extension was unnecessary but not fatal to the imposition of the sentence.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's jurisdiction to impose the stayed custody condition after the expiration of the original probation term and following the issuance of the remittitur.“Thus, it was not necessary for the trial court to extend Smith’s probation by five years in order to retain jurisdiction to impose the stayed portion of Smith’s probationary order, i.e., the custody, on issuance of the remittitur.” | de novo | correct | agree with court agree with court |
Validity of the custody condition given that the appeal process exceeded the original probation term.“The fact Smith chose to be subject to custody only after appeal rather than at the beginning of his probationary term does not diminish the validity of the condition or allow Smith to escape its imposition.” | de novo | correct | agree with court agree with court |
Authorities
- relied: In re Kennick (1982) 128 Cal.App.3d 959 — When execution of judgment is stayed pending appeal, the trial court lacks jurisdiction to modify the judgment during the pendency of the appeal, and the probationary term does not begin to run until after the remittitur issues.
- relied: In re Stallings (1970) 5 Cal.App.3d 322 — Once the remittitur is issued, the probationary order goes into effect automatically unless the trial court decides to vacate or modify it.
- relied: People v. Soukup (1983) 141 Cal.App.3d 858 — Legislative intent behind Penal Code section 1273 is to ensure compliance with the judgment after the appellate process, preventing bail procedures from becoming a device to escape imprisonment if the appeal takes longer than the probation term.
- relied: In re Bolley (1982) 129 Cal.App.3d 555 — A court may not impose a probationary period that exceeds the statutory maximum or is invalid from its outset.
- relied: In re Acosta (1944) 65 Cal.App.2d 63 — A probation condition that is factually impossible to fulfill during the fixed probation term is invalid.
The appellate opinion: sound — The opinion correctly distinguishes cases involving invalid or impossible conditions from the present case where the condition was valid but stayed. It accurately applies the principle that a stay of execution suspends the running of the probation term, ensuring the trial court retains jurisdiction to impose the stayed condition upon remittitur.
How this analysis was made · dispute it
unusual dispositionAfter C. Arnholt Smith's 1979 probationary sentence (one year custody on three counts plus restitution) was partially stayed pending appeal, the trial court extended his probation in April 1984 and, after the remittitur issued, imposed the stayed one-year custody condition on October 10, 1984, a date after the original five-year term would have expired. The Court of Appeal affirmed, holding the stay of the custody condition preserved the trial court's jurisdiction to impose it upon issuance of the remittitur regardless of the expiration of the original probationary term, and distinguishing In re Bolley and In re Acosta.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court had jurisdiction on October 10, 1984 to impose the one-year custody condition that had been stayed pending appeal, even though the original five-year probationary term had expired on May 30, 1984.“a defendant does not escape a custody condition of probation which has been stayed pending appeal because the time required for disposition on appeal exceeds the time set for probation.” | de novo | correct | agree with court The question is purely legal (jurisdiction), and although the opinion states no standard, it treats the issue de novo. Kennick holds a stay of a probationary judgment pending appeal tolls the probationary term, Stallings holds the order takes effect automatically on remittitur, and Soukup's reading of Penal Code section 1273 supports the conclusion that bail pending appeal cannot become a device to escape custody when the appeal outlasts the probation term. Extending Kennick (where the whole order was stayed) to a partial stay of only the custody and restitution conditions is a modest step, and the result follows from the defendant's undertaking under section 1273 to surrender in execution of the judgment on affirmance or modification. |
Trial court's April 30, 1984 order extending Smith's formal probation five years to May 30, 1989.“No issue remains as to the validity of the five-year extension of probation except as it relates to the court’s jurisdiction to impose the custody condition since Smith’s probation now expires at completion of the custody condition.” | unclear | not reached | agree with court The court characterized the extension as resting on the trial court's 'mistaken belief' that it would otherwise lose jurisdiction, found it unnecessary, and declined in footnote 1 to decide its validity because probation now ends with completion of the custody condition. Declining to reach an issue that no longer affects the disposition is proper, though the court's description of the extension as premised on a mistake leaves its status ambiguous. |
Rejection of Smith's contention that his probation expired by operation of law (three-year maximum for the misdemeanor tax counts under Penal Code section 1203, subdivision (a); five-year DSL limit under section 1203.1 for grand theft), depriving the court of jurisdiction to impose custody.“likewise fail to persuade us the court here lacked jurisdiction to impose the stayed condition of custody following our issuing the remittitur.” | de novo | correct | agree with court The court disposes of this argument in a single conclusory sentence without analysis. The result is nonetheless defensible: under the court's tolling rationale the stayed custody condition remained enforceable on remittitur, and the one-year custody condition on count five (grand theft, affirmed as a felony) was within the five-year limit in any event. The lack of reasoning on the reduced misdemeanor counts, however, is a gap. |
Rejection of Smith's contention under In re Bolley and In re Acosta that the custody condition was invalid because it could not be fulfilled within the five-year probationary term.“Neither Bolley nor Acosta involved a condition stayed pending appeal. Both involved conditions invalid or impossible to fulfill from their very outset. Such is not the situation here.” | de novo | correct | agree with court The court accurately distinguishes Bolley (probationary period three times the statutory maximum) and Acosta (custody condition impossible to serve from the outset because defendant was already in custody) as cases of conditions invalid ab initio, whereas Smith's condition was valid when imposed and became deferred only because Smith himself sought and obtained a stay. The reasoning that a defendant cannot convert his own requested stay into a defense is consistent with Soukup and Penal Code section 1273. |
Authorities
- relied: In re Kennick (1982) 128 Cal.App.3d 959 — When execution of a probationary judgment is stayed pending appeal, the trial court lacks jurisdiction to modify it during the appeal, and the stay tolls the running of the probationary term until the remittitur issues; a stay is ordinarily construed to include all conditions.
- relied: In re Stallings (1970) 5 Cal.App.3d 322 — Once the remittitur issues, a stayed probationary order goes into effect automatically unless the trial court vacates or modifies it.
- relied: People v. Soukup (1983) 141 Cal.App.3d 858 — Under Penal Code section 1273 the Legislature intended to permit a stay of imprisonment pending appeal only if full compliance with the judgment after appeal is assured; bail on appeal cannot be used to escape custody because the appeal outlasts the probation term.
- relied: In re Bolley (1982) 129 Cal.App.3d 555 — Distinguished: a court may not impose a probationary period exceeding the statutory maximum; involved a condition invalid from the outset, not one stayed pending appeal.
- relied: In re Acosta (1944) 65 Cal.App.2d 63 — Distinguished: a custody condition that is factually impossible to fulfill within the probationary term at the outset is invalid; did not involve a stay pending appeal.
- missed: In re Griffin (1967) 67 Cal.2d 343 — A trial court generally lacks jurisdiction to act on probation after the probationary term has expired, though a probationer may be estopped from challenging an order he invited; the Supreme Court's framing of post-expiration jurisdiction was relevant to Smith's expiration argument and was not addressed.
The appellate opinion: sound with gaps — The court correctly applied Kennick, Stallings and Soukup to hold that a custody condition stayed at the defendant's request pending appeal survives expiration of the nominal probationary term and may be imposed on remittitur, and it properly distinguished Bolley and Acosta. It left gaps by disposing of the 'expired by operation of law' argument in one conclusory sentence, by not addressing the Supreme Court's treatment of post-expiration jurisdiction in In re Griffin, and by not fully explaining how a partial stay of only the custody condition tolls the probationary term when Kennick involved a stay of the entire order.
Opinion — Staniforth
Opinion
STANIFORTH, J.C. Arnholt Smith was convicted by a jury in May 1979 of two felony counts of tax fraud for the year 1971 (Rev. & Tax. Code, §§ 19405, 19406), two felony counts of tax fraud for the year 1973 (ibid.) and one count of grand theft (Pen. Code, § 487, subd. 1).
*1228On May 31, 1979, Smith was placed on probation for five years on condition he serve one year in the custody of the sheriff for each of counts two, four and five and he make restitution of $681,000. Smith appealed his conviction.
On September 26, 1979, the trial court stayed the restitution and custody conditions pending appeal but did not stay the probationary term itself.
On March 24, 1984, the probation department sought to have Smith’s probation modified by extending the probationary term for another five years. The modification was sought because Smith’s term was due to expire on May 30, 1984. This court had not yet rendered its decision and the probation department feared the court would lose its jurisdiction over Smith.
On April 30, 1984, the court extended Smith’s formal probation for another five years until May 30, 1989.
This court filed its opinion on May 17, 1984, affirming tax counts one through four as misdemeanor violations of Revenue and Taxation Code section 19401 and affirming the grand theft in count five as a felony. We remanded for resentencing unless the People sought a new trial on the tax count within 30 days of the issuance of the remittitur. (People v. Smith. (1984) 155 Cal.App.3d 1103, 1187-1188, 1198 and fn. 6 [203 Cal.Rptr. 196].) We issued the remittitur on August 21, 1984.
On October 10, 1984, the court sentenced Smith to 365 days in custody of the San Diego County Sheriff with 1 day suspended. The court made it clear it was imposing the one-year custody as provided for in Smith’s initial probation order. Smith surrendered to the custody of the sheriff on November 26, 1984, after making various motions to the superior court and various petitions to this court and the Supreme Court. Smith is due to be released in July 1985.
On appeal, Smith contends the trial court lacked jurisdiction to impose judgment on October 10, 1984, a date after the expiration of his initially imposed probationary term, and the attempted extension of his term was invalid.
Discussion
I
The filing of an appeal does not of itself stay execution of the judgment in criminal proceedings. (Pen. Code, § 1243.) A court may stay *1229the execution of judgment pending appeal (ibid.) and may allow a defendant to be released on bail pending the appellate court’s decision. (Pen. Code, § 1272.) A defendant may be released on appeal only if he undertakes to “surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed . . . .” (Pen. Code, § 1273.)
When the execution of judgment has been stayed pending appeal, the trial court lacks jurisdiction during the pendency of the appeal to modify the judgment. (In re Kennick (1982) 128 Cal.App.3d 959, 962 [180 Cal.Rptr. 731].) A stay of a probationary-type judgment stays the running of the probationary term so that it does not begin to run until after the remittitur has issued. (Ibid.) Once the remittitur is issued, the probationary order goes into effect automatically unless the trial court decides to vacate or modify. (In re Stallings (1970) 5 Cal.App.3d 322, 329 [85 Cal.Rptr. 96].)
Usually, a court will stay an entire probationary order as well as all the conditions, including a custody condition pending appeal, and the courts will construe a stay to include all conditions. (In re Kennick, supra, 128 Cal.App.3d 959, 963.) However, nothing prevents a court from staying only the most onerous of the probationary conditions, i.e., custody, and from that stayed condition having automatic effect on issuance of the remittitur. As the court noted in People v. Soukup (1983) 141 Cal.App.3d 858, 862 [190 Cal.Rptr. 635], after citing Penal Code section 1273 (bail and release on appeal only if defendant undertakes to surrender himself in execution of the judgment): “Clearly, the Legislature intended to permit a stay of imprisonment only if the defendant’s foil compliance with the judgment after completion of the appellate process was assured. The rule appellant here proposes would frustrate this legislative intent by turning the bail procedure into a device to escape imprisonment should the time required for disposition on appeal exceed the time set for probation. This is not the law.”
Here, the court stayed only the custody and restitution conditions of Smith’s probation. The court attempted to extend the term of probation on April 30, 1984, in its mistaken belief that if it failed to extend the term of Smith’s probation it would lose jurisdiction over him and therefore would be unable to impose custody. However, as case law teaches, a defendant does not escape a custody condition of probation which has been stayed pending appeal because the time required for disposition on appeal exceeds the time set for probation. Thus, it was not necessary for the trial court to extend Smith’s probation by five years in order to retain jurisdiction to impose"the stayed portion of Smith’s probationary order, i.e., the custody, *1230on issuance of the remittitur. (Compare In re Stallings, supra, 5 Cal.App.3d 322.)1
Smith’s similar contentions that custody could not be imposed because his period of probation had expired by operation of law (the tax counts—by our reducing them to misdemeanors for which a maximum of three years’ probation may be imposed (Pen. Code, § 1203, subd. (a)), the grand theft by passage of the determinate sentencing law which limits probation to five years (Pen. Code, § 1203.1)) likewise fail to persuade us the court here lacked jurisdiction to impose the stayed condition of custody following our issuing the remittitur.
II
Finally, Smith contends the court may not impose a condition which cannot be fulfilled during the period fixed by the court as a term of probation. (See In re Bolley (1982) 129 Cal.App.3d 555 [181 Cal.Rptr. 111]; In re Acosta (1944) 65 Cal.App.2d 63 [149 P.2d 757].) Smith argues since the custody condition was stayed pending appeal and the disposition on appeal failed to occur within the five-year term of probation, the custody condition must fail because it could not be met within the original term of probation.
Bolley and Acosta are factually distinguishable. Bolley involved a court’s attempt to impose a probationary period three times longer than the statutory maximum. Acosta involved a court’s attempt to impose one-year’s probation plus one-year’s custody but since the defendant was already serving a year in custody, it was factually impossible for the defendant to serve the probationary year of custody during the one-year probationary year. Neither Bolley nor Acosta involved a condition stayed pending appeal. Both involved conditions invalid or impossible to fulfill from their very outset. Such is not the situation here. There is no factual impossibility in serving a year of custody during a five-year probationary term and there is nothing invalid about such a condition. The fact Smith chose to be subject to custody only after appeal rather than at the beginning of his probationary term does not diminish the validity of the condition or allow Smith to escape its imposition.
*1231The judgment is affirmed.
Brown (Gerald), P. J., and Lewis, J., concurred.
No issue remains as to the validity of the five-year extension of probation except as it relates to the court’s jurisdiction to impose the custody condition since Smith’s probation now expires at completion of the custody condition.
Cites, in this corpus
- People v. Smith Crim. 11314 · 1984-05-17
- People v. Soukup Crim. 42692 · 1983-04-13
- In Re Kennick Crim. 41144 · 1982-02-19
- In Re Bolley Crim. 11792 · 1982-02-05
- In Re Stallings Crim. 17371 · 1970-03-12
- In Re Acosta Crim. 3821 · 1944-06-24