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:
THAT WHEREAS, the said A (2 P 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
C P be punished by imprisonment in a California State Prison for the
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
probation shall remain in full force and effect. The defendant is remanded
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
