¶1I dissent.
¶2In my opinion, it does not appear “upon the face of the record” or otherwise “that the trial court lacked jurisdiction” to make the order of March 28,1956, extending the duration of probation to June 1, 1960. The majority opinion apparently concedes that unless it does so appear, then defendant is properly confined under the sentence imposed on November 12, 1958, following defendant’s third conviction for repeated violations of section 288a of the Penal Code.
¶3Upon a prior habeas corpus proceeding instituted in the superior court in 1958, Judge Glen reviewed the record and concluded that “the extension was proper and that the court had a right and jurisdiction to do it.” I agree with that conclusion. It appears that the application which had been made by the probation officer to Judge Glen on March 27, 1956, was for revocation of probation, and not for extension of probation; that Judge Glen then denied revocation by ordering defendant’s release from the custody of the sheriff and his continuation on probation; that Judge Glen did not pass upon any application for extension; that Judge Glen “probably would have extended it” if such application had been made; that the cause was then returned to the department of the presiding judge where post-sentence proceedings were normally heard; and that thereafter “the probation officer took it into the presiding department as a matter of routine that it be extended.” Under these circumstances, I find no inconsistency between the order of March 27, 1956, denying the application for revocation or probation, and the order of March 28, 1956, granting the application for extension of probation.
¶4*842The majority opinion rests solely upon the authority of In re Bine, 47 Cal.2d 814 [306 P.2d 445], but that case is clearly distinguishable. This court there pointed out that “no problem is here presented as to improper conduct by petitioner or violation of the terms of his original probation”; and that the trial court simply “reached a different conclusion upon the same facts which were before it at the time it imposed the original terms of probation.” (Pp. 816-817.) It was therefore held that the order modifying the original order of probation, by adding a jail sentence as a condition thereof without any new facts to support such order of modification, “was made in excess of the jurisdiction of the court for the reason that there was no factual basis to support it.” (P. 818.) Here, however, there was improper conduct by defendant and there was a violation of the original terms of probation, and it is clear that there were ample new facts to support the order of extension. In my opinion, the mere fact that there had been a prior order denying an application for revocation of probation did not affect the jurisdiction of the court to entertain an application for an extension of the duration of probation based upon the same misconduct and violation of the terms of the original probation. To hold otherwise would result in putting an unwarranted and unadministering the beneficent provisions of our statutes re-desirable limitation upon the powers of the trial courts in lating to probation.
¶5In view of the above conclusion, it is unnecessary to discuss the question of whether defendant is foreclosed from raising the point in this proceeding in habeas corpus by reason of his failure to appeal from the judgment of conviction entered on November 12, 1958.
¶6I would deny the petition and remand the defendant to custody.
¶7Respondent’s petition for a rehearing was denied April 29, 1959. Spence, J., was of the opinion that the petition should be granted.