An alternative writ of mandate was issued to the superior court upon application of petitioner, who had made a request to the superior court for the suspension of the execution of sentence, such request having been denied upon the ground of lack of jurisdiction in that court to entertain it.
The sole question before this court relate to the power of the superior court to act upon a petition for suspension of sentence pronounced upon a convicted person after affirmance of the judgment of conviction upon appeal.
Petitioner was convicted of the crime of extortion. Upon appeal the judgment was affirmed. Upon the going down of *Page 131 the remittitur he made application, under section 1203 of the Penal Code, for suspension of the execution of the sentence, and his counsel here contend that under the terms of that section the superior court has jurisdiction to determine, upon the merits, whether or not sentence shall be suspended at any time between the conviction of a defendant and his surrender by the sheriff to the warden of the penitentiary in which the commitment as originally made directed his imprisonment.
Section 1203 of the Penal Code, by reason of which, as petitioner asserts, he is entitled to the relief for which he prays, was traced in its historical development by the learned judge of the superior court to whom application for suspension of judgment was made. He pointed out the following facts: As originally enacted in 1872 the section provided that a court in its discretion could consider, before pronouncing judgment, any facts or circumstances in aggravation or mitigation of the punishment about to be imposed. As amended in 1903 the law empowered the court to suspend the imposing of sentence where the punishment was imprisonment alone and to suspendexecution of the sentence of imprisonment and to place the defendant on probation, to the end that he might earn the money with which to pay his fine where the punishment for the offense was both fine and imprisonment. By the amendment of 1911 the court was authorized in any case not only to suspend sentence but to suspend the execution of sentence. But the section does not confer an unrestrained and unlimited power upon the trial court. It deals with and provides machinery for probation of a defendant where the court, in the exercise of a sound discretion, decides to suspend the imposing or the execution of sentence. The learned judge of the superior court, upon consideration of the history and development of this part of the law, therefore correctly concluded that the section under analysis is one dealing with the subject of probation; that it is limited accordingly by any other provision relating to the time in which, after conviction, a defendant may seek probation; and that section 1191 of the Penal Code contains such a limitation. Section 1191, so far as pertinent to this question, is as follows: "After a plea or verdict of guilty, or after a verdict against the defendant on a plea of former conviction or acquittal, or once in jeopardy, the court must appoint a time for pronouncing judgment which must not be less than two, nor more than five *Page 132 days after the verdict or plea of guilty; provided, however, that the court may extend the time not more than ten days for the purpose of hearing or determining any motion for a new trial, or in arrest of judgment; and provided, further, that the court may extend the time not more than twenty days in any case where the question of probation is considered in accordance with section 1203 of this code, provided, however, that upon the request of the defendant such time may be further extended not more than ninety days additional." It is clear from the foregoing that probation is a subject which must be considered during the brief period after conviction, which is limited by the section from which the above quotation is taken, and that the court's power to suspend the execution of sentence under section 1203 of the Penal Code expires with the pronouncing of a judgment followed or accompanied by no order of suspension. It is to be noted that each of these two sections opens with the phrase "After a plea or verdict of guilty." In the earlier section this expression, undoubtedly, refers to the time before judgment, and in the latter the same words in our opinion indicate the same period.
That the authority of the court under said section 1203 does not attach anew to the judgment after affirmance thereof on appeal is evident from the language of sections 1263 and 1265 of the Penal Code which are mandatory in their terms. The former provides that "If a judgment against the defendant is affirmed, the original judgment must be enforced," and the latter is as follows:
"After the certificate of the judgment has been remitted to the court below, the appellate court has no further jurisdiction of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect must be made by the court to which the certificate is remitted."
It is clear, from the reading of these provisions, that after a judgment of conviction in a criminal case has been affirmed by an appellate tribunal judicial power to alter or suspend it has ceased.
The petition for a peremptory writ of mandate is denied and the alternative writ is dismissed.
Shaw, J., Sloss, J., and Angellotti, C. J., concurred.