In DEPORTATION Proceedings

MATTER OF C

P

In DEPORTATION Proceedings

A-6749896

Decided by Board December 14, 1959

bLportability—Section 241(a)(4), convicted and sentenced within five years—

Suspension of imposition of sentence may be revoked and sentence actually

imposed without use of words "revocation" or "termination."

Respondent in 1955 pleaded guilty in the California Superior Court to burglary,

second degree; proliatioo was granted and imposition of sentence suspended.

In 1959, on evidence of violation of probation but without expressly revoking or terminating the 1955 order, the court ordered that respondent he

punished by a term of 1-15 years in the State Prison and that execution of

sentence be suspended. Held : um: ir California law there was an actual

imposition of sentence in 1959 rather than a modification of the terms of

probation. Respondent was "sentenced" within the meaniog of the first

part of section 241(a) (4) of the 1952 act.

CHARGE:

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Crime

with in five years : Burglary, second degree.

BEFORE THE BOARD

Discussion: By decision dated :June

1959, the special inquiry

officer concluded that respondent is not deportable on the charge

contained in the order to show cause. The special inquiry officer

thereupon ordered that the proceedings be terminated. From such

decision the Service has taken an appeal.

The respondent, a married male alien, a native and national of

Mexico, testified that he was admitted to the United States for permanent residence on June 11, 1954. On March 7, 1955, in the Superior Court of the State of California in and for the County of

Fresno, he pleaded guilty to two counts of burglary of a locked

automobile (second degree) committed on or about February 5,

1955. On March 21, 1955, the court suspended the imposition of

sentence for the period of 10 -years and placed the respondent on

probation, one of the conditions of probation being that respondent

be, committed to the custody of the Sheriff of Fresno County for the

first 60 days of the probationary period.

504

On April 10, 1959, tile court entered a further order reading as

follows:

HEARING:

The District Attorney, by his Deputy, M

E

with the defendant and

his counsel, T O—, come into open court for hearing on the Special Report

of the Probation Officer. The Court considers the said report and orders that

probation terms be modified as follows:

(2

P

THAT WHEREAS, the said A

having pleaded guilty to

BURGLARY, SECOND DEGREE, * and the Court having thereafter on

the 21st day of March, 1955, suspended the imposition of sentence and admitted the defendant to probation for a period of 10 years * * * and it appearint ,

toheCuradfnthsviolermfadpobtin,

IT IS ORDERED, ADJUDGED AND DECREED that the defendant A

be punished by imprisonment in a California State Prison for the

C

P

term prescribed by law and he is eonnnitted to the custody of the Director

of Corrections until legally discharged. IT IS FURTHER ORDERED that

the execution of this sentence be suspended on condition that the defendant

spend the first 90 days in custody and he is committed to the custody of the

Sheriff of the County of Fresno for a period of tild days without credit for

time already spent in custody. It is further ordered that all other terms of

The defendant is remanded

probation shall remain in full force and effect.

to the custody of the Sheriff of the County of Fresno for the execution of

this sentence.

It is further ordered by the Court that this sentence shall he served concurrently with any other sentence the defendant may now he serving.

The pertinent provisions of sections 1203.1, 1203.2. and 1203.3 of

the California. Penal Code regarding probation orders are as follows.

Section 1203.1 authorizes the court to suspend imposition or execution of sentence and to impose as a condition of probation imprisonment in a county jail for a period not exceeding the maximum

time fixed by law in the particular case. Section 1203.1 also gives

the court the power to modify and change any and all terms and

conditions of probation and to reimprison the probationer in the

county jail - should the probationer violate any of the terms and

conditions imposed by the court.

Section 1203.2 provides that the court may revoke and terminate.

the probation, if the interests of justice so require, and if the court,

in if s judgment, shall have reason to 'believe that the person so

placed on probation i9 violating any of the conditions of the probation. This section further provides that upon such revocation and

termination the court may, if the sentence has been suspended, pronounce judgment. for any time within the longest period for which

the defendant might have been sentenced.

Section 1203.3 gives the court authority at any time during the

term of probation to revoke, modify, or change its order of suspen

sion of imposition or execution of sentence.

The special inquiry officer comments that when the court suspended imposition of sentence and placed the respondent on proha-

505

tion the respondent did not become deportable. The special inquiry

officer states that the order of April 10, 1959, was not a sentencing of

the respondent but was merely a modification of probation and that

respondent is, therefore, still not deportable.

The special inquiry officer points out that the court in the order

of April 10, 1959, declared at the outset that the terms of probation were being modified and that nowhere does the court describe

its action as revocation of probation. The special inquiry officer

takes the position that although such 1959 order seems to reflect an

intention on the court's part to impose the sentence, the language of

the court in its entirety indicates that the court was modifying the

terms of probation rather than revoking probation and imposing

sentence.

The special inquiry officer states that "imprisonment in the State

prison for the term prescribed by law must be held, therefore, to be

a condition of probation imposed by the court, rather than a sentence, albeit the action of the court in imposing such a condition of

probation is ultra wires and a nullity." The special inquiry officer

further states that if the court's action of April 10, 1959, however,

was a revocation of probation followed by imposition of sentence for

the term prescribed by law, resp,_,ident v-ould be deportable despite

the fact that the execution of sentence was suspended.

The decision of the special inquiry officer is apparently based on

the fact that the court did not "describe its action as revocation of

probation." It is not necessary that the court so describe its action.

There can be a "revocation" or "termination" of an original order

of suspension or probation without. the use of the word "revoked"

or "terminated." Thus, in In re Torres (86 C.A. 2d 178, 194 P. ad

593 (1948)), the court stated in part: "While that case (In re

Giannini, 18 C.A. 166, 122 P. 831) is authority for the proposition

that in such a case as this some form of revocation or modification

of the original order must affirmatively appear, nothing in that

decision requires that such revocation or modification appear in an2

particular form, or that a formal order using the words 'revoked'

`terminated' must be entered. Where a violation of the terms of a]

order of suspension or probation is determined as a fact in ope:

court after notice, and an order is `therefore' made sending a d(

fondant back to jail to serve the remainder of the term orig,inall

provided for, it would seem that it affirmatively appears that tl

suspension or probation has been revoked or terminated."

In the instant case, in the presence of the Deputy District A

t.ornev, the respondent and his counsel, after reciting the history

the case and immediately alter the words "and it appearing to t

Court that the defendant has violated the terms of said probatio,

the court "ordered, adjudged and decreed" that the respondent

506

punished by imprisonment in a California state prison for the term

prescribed by law and that the execution of this sentence be suspended under specified conditions.

In the light of the decision in In re Torres, supra, this court order

clearly shows that there was a revocation of the original order of

probation and the suspension of the imposition of sentence because

respondent had violated the terms of his probation and that the

sentence provided by law was being imposed.

Counsel urges that where probation is denied in California the

court does not have the authority to suspend part of a sentence and

that the court has no power to suspend execution of a sentence except as an incident to granting probation.

In the instant case, the court did not deny probation. On the

contrary, the order suspending the execution of the sentence was an

indication that respondent was again being placed on probation

(People v. Muroleipal Court, 145 C.A. 2d 767, 303 P. 2d 375 (1956))

and the remainder of such order shows that a. condition of the new

probation was that respondent spend the first 90 days in the custody

of the Fresno County sheriff. The words: "It is further ordered

that all other terms of probation shall remain in full force and

effect" immediately follow the provision with respect to such 90

days, and thus the remaining conditions of the original probation

were incorporated by reference.

The modification of probation mentioned at the beginning of the

order of April 10, 1959, and before the recital of the history of the

case would appear to refer to the fact that the suspension of the

imposition of sentence was being revoked and that respondent was

to spend an additional 90 days in the custody of the sheriff.

It may be noted that sentencing to a state prison is not permitted

as a condition of probation (section 1203.1, California Penal Code).

However, the court was within its authority under section 461 of the

Code in sentencing respondent to a state prison as the punishment for

burglary in the second degree. Section 461 provides:

Burglary is punishable as follows:

1. Burglary in the first degree: * * *;

2. Burglary in the second degree: by imprisonment in the county jail not

exceeding 1 year or in the State prison for not less than 1 year or more than

15 years.

The words in the court order of April 10, 1959, "It is ordered,

adjudged and decreed that the defendant * * * be punished by imprisonment in a California State Prison," closely follow the wording

of the provision regarding the sentence in section 461, and the expression "fur the term prescribed by law" is commonly used by the

courts in imposing a sentence for an indeterminate term (In re

L arsen, 44 C. 2d 642, 283 P. 2d 1043).

507

Upon careful consideration of the record, it is our conclusion that

when the court ordered, adjudged and decreed on April 10, 1959,

that the respondent be punished by imprisonment in a California

state prison for the term preScribed by law the court was actually

imposing the sentence for second degree burglary provided by law,

after revoking the suspension of the imposition of sentence, and

that such a sentence was an independent sentence and not a condition of probation. Respondent, having been sentenced to imprisonment in a California state prison for the term prescribed by

law for second degree burglary is considered as having been sentenced to a minimum term of 1 year and a maximum term of 15

years (In, re Larsen. supra).

Since the crime for which respondent was convicted and so sentenced involves moral turpitude and was committed within five

years after entry, he is subject to deportation on the charge contained in the order to show- cause, although there was no actual

imprisonment under such sentence (United States ex rel. Fells v.

Garfinkel, 158 F. Supp. 524 (W.D. Pa. 1957), aff'd 251 F. 2d 846

(C.A. 3, 1958)). Inasmuch as it is our conclusion that deportability

on the charge contained in the order to show cause has been established, the order of the special inquiry officer will be reversed and

an order of deportation will be entered in lieu thereof.

Order: It is ordered that the order entered by the special inquiry

officer on June 22, 1959, be and the same is hereby reversed.

It is farther ordered that the respondent be deported from the

,

United States in the manner provided by law on the charge con

-

tained in the order to show cause.

508