People v. Cortez

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[Crim. No. 7335. Second Dist., Div. One. Feb. 5, 1962.]

THE PEOPLE, Plaintiff and Respondent, v. FIDEL G. CORTEZ, Defendant and Appellant.


David C. Marcus for Defendant and Appellant.

Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Robert M. Sweet, Deputy Attorney General, for Plaintiff and Respondent.



This is an appeal from an order denying defendant's motion to quash a warrant of arrest for violation of probation and motion in arrest of judgment, and from an order and judgment made by the superior court on May 27, 1960.

On or about February 2, 1955, the appellant, with Dolores Cortez, was indicted in Los Angeles County for the crime of possessing heroin in violation of section 11500 of the Health and Safety Code. After other proceedings were had the appellant was found guilty as charged on June 7, 1955. The matter on that date was referred to the probation officer for investigation and report. On June 23, 1955, a probation officer's report was filed wherein it was set forth, among other things, that appellant was born in Mexico, that he came to this country in 1945, and that in 1950 he was married. His arrest [199 Cal. App. 2d 841] record, according to a probation report, showed among other things that on March 21, 1946, he was delivered to the United States Immigration Inspector because of a violation of the immigration laws; that on October 29, 1950, he was released to United States immigration authorities; and that on January 31, 1955, because of an illegal entry, he was released to the United States immigration authorities.

At the time of the filing of the probation officer's report the immigration authorities had a case against the defendant and he was then up for deportation. The probation officer's report indicated that at the time of the arrest of the appellant he had large sums of money and some bonds in his possession. The appellant stated to the probation officer untruthfully that he had never been arrested before and indicated correctly that he was in this country illegally.

A supplemental probation officer's report was filed on June 29, 1955, which indicated that the appellant at the time of his arrest had heroin of the commercial value of about $25,000 in his possession, that he was strongly suspected of being a wholesale dealer in heroin, that he had extensive connections "below the border" and that his operations were extensive. In both probation officer's reports it was recommended that probation be denied.

On July 1, 1955, the appellant was sentenced to the state prison for the term prescribed by law, the sentence was then suspended and appellant was placed on probation for 10 years upon the conditions: "Defendant to serve one year County Jail; said jail term to be reduced to time already served if defendant is deported. If not deported, upon his release to leave the United States and to not return to this country." At the time of the sentence and imposition of judgment the following occurred:

"The Court: I will hear you."

(Counsel for Cortez.)

"Mr. Stern: In so far as his prior arrests record, there is that one prior, with the deportation with the Immigration. That is the only arrest that is actually of any importance. There is a drunk charge, and a 502, and the other is referred to the present offense, which is the present narcotics charge; and also there is a hold by the Federal government for deportation. At the present time, as soon as any disposition is made of this case, the Federal government plans to deport the man. He has already had his hearing. It was possibly four or five months ago when he was first arrested he had the [199 Cal. App. 2d 842] hearing. If the Court could see fit in this particular instance--I realize there is quite a bit of narcotics involved in the case--if the Court could see fit to impose a suspended sentence on condition he is deported, and I believe he will be deported within a month after any sentence is imposed, and after the completion of any sentence, I should say, and that the Federal government would not release him on bail of any sort. They would only allow him to remain in the County Jail until he is deported, or wherever he is being held. Taking into consideration the fact he has been in custody approximately six months in this matter, I submit to the Court I feel that deportation in this case would be proper.

"The Court: As I understand it now it is the request of the defendant that proceedings be suspended in this matter pending the determination of the deportation matter, is that correct?

"Mr. Stern: Yes, your Honor, and I believe that if___

"The Court: There is a code section which authorizes a suspension of proceedings, isn't there, Mr. McGinley?"

(Deputy District Attorney)

"Mr. McGinley: I don't know, your Honor. I object to that type of proceeding, though. I think this is a case where the evidence clearly discloses that this defendant is probably one of the big narcotic pushers in this area, and he is not a user. He is merely in it for the profit. And I think that we should not treat this man any differently because he has a deportation proceeding pending against him.

"The Court: Except this. Of course if we send him to the penitentiary here, California has the burden of maintaining and supporting him during that period of time. And if he is deported we get rid of him.

"Mr. McGinley: For how long? That is the question." (Emphasis added.)

A warrant of arrest was issued on July 9, 1956, and an order revoking the probation theretofore granted was made.

The appellant was charged with a violation of the probation in the early part of 1960, it being asserted that he was deported to Mexico on April 26, 1956, and had never reported. A violation of probation was found to be true on May 27, 1960, and the order of July 1, 1955, was placed into full force and effect.

The appellant was arrested about April 22, 1960, at his home in Compton, where he was living in a common-law relation with Tillie Hernandez. One child had been born as [199 Cal. App. 2d 843] the issue of that relationship. The appellant stated that although he was deported by the United States Immigration Department in 1956, through the port of Brownsville, Texas, he had returned to this country at a point about one mile west of Nogales, Arizona, without immigration documents and without inspection by the immigration authorities. He also stated that he did not know the whereabouts of his wife. He seemingly was fully aware that he was in this country illegally at the time of the hearing with which we are presently concerned.

Appellant obviously was never lawfully admitted to the United States as an immigrant for permanent residence. His reentry to the United States west of Nogales constituted a crime under the circumstances (8 U.S.C. § 1325). He never applied for or received permission to reapply for admission after deportation. He failed to file an alien address report required by the federal law. The appellant confided in a friend that he was a probation violator, the police were told this, and subsequently the sheriff picked him up.

A hearing was held as to whether or not the probation previously granted should be revoked. Counsel for appellant at that time argued that the warrant of arrest of appellant which was issued shortly after appellant was deported was void, and that inasmuch as the appellant was arrested under that warrant all proceedings thereafter also were void. Appellant asserts presently that the specific condition of probation that upon his release from jail he leave this country and not return to it is void as an order of banishment and that the order revoking probation allegedly based on his violation of this condition is likewise void.

The prosecution concedes that the order of banishment is void. See People v. Blakeman, 170 Cal. App. 2d 596, 597, 599 [339 P.2d 202]; In re Newbern, 168 Cal. App. 2d 472, 475 [335 P.2d 948]; In re Scarborough, 76 Cal. App. 2d 648, 649-650 [173 P.2d 825]; People v. Lopez, 81 Cal. App. 199, 203- 204 [253 P. 169].

The district attorney, at the time of the hearing, contended that the appellant had violated certain implied conditions of probation by returning to this country without benefit of clearance from the immigration authorities, the abandonment of his wife, and the living in a common-law relationship with another woman.

[1] Probation is not a matter of right but an act of grace and clemency (People v. Brown, 172 Cal. App. 2d 30, 34 [342 [199 Cal. App. 2d 844] P.2d 410]). [2, 3] Necessarily a broad discretion is lodged with the trial judge in matters with reference to probation (People v. Lippner, 219 Cal. 395, 400 [26 P.2d 457]; People v. Silverman, 33 Cal. App. 2d 1, 5 [92 P.2d 507]) and the determination which is necessary by the trial judge in revocation proceedings can be made solely upon the probation officer's report (People v. Yarter, 138 Cal. App. 2d 803, 805-806 [292 P.2d 649]; People v. McClean, 130 Cal. App. 2d 439, 444 [279 P.2d 87]).

The probation officer's reports in this case indicate that the appellant had at the time of sentencing already had a hearing before the United States Immigration Department with reference to his deportation. It is apparent that the order of the judge to the effect that the appellant be deported was of no effect and had no bearing on the deportation of appellant by the United States authorities. The appellant in fact had once been deported before the case with which we are concerned was in existence and according to the federal officials he was deportable at the time of sentence without any assistance or suggestions from the state courts. The appellant admittedly reentered the United States illegally. Certainly the appellant was engaging in "criminal practices" and he had become "abandoned to improper associates." The appellant himself knew that he was a violator and so told a friend.

[4] Probation is granted to the end that a defendant may rehabilitate himself, make a responsible citizen out of himself and be obedient to the law. [5] It is implicit in every order granting probation that the defendant refrain from associating with improper persons or engaging in criminal practices (People v. Lippner, 219 Cal. 395, 398-400 [26 P.2d 457]; People v. Hunter, 42 Cal. App. 2d 87, 91 [108 P.2d 472]).

[6] Probation or suspension of a sentence must of course be granted in accordance with the law (Oster v. Municipal Court, 45 Cal. 2d 134, 139 [287 P.2d 755]) and if a court does otherwise the suspension is void but if a sentence has been imposed the sentence remains good (People v. Cravens, 115 Cal. App. 2d 201 [251 P.2d 717]).

[7] The order of banishment is not authorized by law and is void but it is severable from and does not adversely affect the valid conditions of the order as made.

[8] It has been held that where a defendant violates the law (as this appellant did so violate the law during the probationary period) he may be arrested by the probation officer or any peace officer without a warrant or other process (In [199 Cal. App. 2d 845] re Young, 121 Cal. App. 2d 711 [10 P.2d 154]; Pen. Code, § 1203.2).

[9] Reduced to the simplest terms this appellant asked the trial judge to impose in part a void order and the court complied with his request. The appellant thereafter violated the law and now asserts that the courts are powerless to do anything about it because the judge complied with his request in the first instance in imposing a void condition.

The defendant may not appeal from an order denying a motion in arrest of judgment. (People v. Proctor, 46 Cal. 2d 481 [296 P.2d 821]; People v. Tidwell, 108 Cal. App. 2d 60 [238 P.2d 21]; People v. Bentson, 132 Cal. App. 295 [22 P.2d 734]; People v. Rubens, 11 Cal. App. 2d 576 [54 P.2d 98, 1107]; People v. Godines, 17 Cal. App. 2d 721 [62 P.2d 787]; People v. Dallas, 42 Cal. App. 2d 596 [109 P.2d 409]; People v. Weiskopf, 60 Cal. App. 2d 214 [140 P.2d 201]; People v. Krupa, 64 Cal. App. 2d 592 [149 P.2d 416]; People v. McGee, 31 Cal. 2d 229 [187 P.2d 706]; People v. Smyre, 165 Cal. App. 2d 651 [332 P.2d 391]; People v. Mills, 148 Cal. App. 2d 392 [306 P.2d 1005]; People v. Costa, 141 Cal. App. 2d 795 [297 P.2d 667].)

There is no merit to appellant's contention to the effect that his motion to quash a warrant of arrest should have been granted. The attempted appeal from the order denying the motion in arrest of judgment is dismissed.

The orders of the trial judge with reference to revoking probation and placing into full force and effect the original sentence and the order refusing to quash the warrant of arrest are and each is affirmed.

Wood, P. J., and Lillie, J., concurred.