Does Section 1203 of the California Probation Act allow probation to be granted to a defendant who has a pending conviction for robbery, burglary or arson even though at the time of the crime he was armed with a deadly weapon?

California, United States of America


The following excerpt is from People v. Orrante, 20 Cal.Rptr. 480, 201 Cal.App.2d 553 (Cal. App. 1962):

'The 1957 amendment did not delete nor purport to modify the latter provisions. As a consequence, although a trial court now may exercise discretion in granting or refusing to grant probation to a defendant with respect to a pending conviction for robbery, burglary or arson' even though at the time of the perpetration thereof he was armed with a deadly weapon, or to a person previously convicted of a felony which was not perpetrated while he was armed with a deadly weapon, it has no such discretion with respect to an application for probation by a defendant previously convicted of a felony who at the time of the perpetration of the previous offense was armed with a deadly weapon. The expressed intent of the statute in this regard is clear. The case of People v. Hollis, supra, 176 Cal.App.2d 92, 1 Cal.Rptr. 293, upon which the defendant relies, is not authority to the contrary. That case did not involve the application of a defendant who previously had been convicted of a felony while armed with a deadly weapon; was not concerned with the provisions of Section 1203 respecting such a factual situation; but was limited to a consideration of the application of a defendant asking for probation with respect to a pending conviction for robbery while armed with such a weapon; and was governed solely by the 1957 amendatory provisions.' (197 A.C.A. at pp. 116-117, 17 Cal.Rptr. at pages 49-50.)

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