Thornton

Does admission to probation upon a felony conviction require that the defendant be granted probation after reversal of the judgment and conviction upon retrial? That is the issue presented by this appeal.

In 1968, a jury convicted defendant of grand theft. Imposition of sentence was suspended, and he was admitted to probation for three years on condition he serve eight months in county jail and make restitution to each of his victims. He appealed and the judgment was reversed May 23 (1 Crim. No. 7149, unpublished) for error in instructions. Upon retrial, a jury again found him guilty. He was then sentenced to state prison. He now asserts that the greater punishment after reversal and retrial is impermissible.

In 1963, California first adopted the rule that a defendant who has been convicted, appeals, and secures reversal, cannot be subjected to a greater penalty when reconvicted, upon his second trial, of the same offense in the same degree (People v. Henderson, 60 Cal.2d 482 [ 35 Cal.Rptr. 77 , 386 P.2d 677 ]). In that case, defendant had been sentenced to life imprisonment upon his guilty plea, but the death penalty was imposed after trial following reversal. In 1967…