In re Elam

On July 6, 1981, petitioner pled guilty to possessing a sawed-off shotgun. He was immediately placed on probation without the imposition of sentence. However, in accordance with a previously effected agreement, *98 the court also purported to order that he spend the first six months of his probationary term in custody but with execution thereof “stayed” pending the receipt of future reports concerning his “progress.”

The objective of this “probation” within “probation” is obscure since a court is always free to require periodic reports if it so desires. Furthermore, if a probationer fails to demonstrate proper rehabilitative efforts, the court may require him to spend appropriate periods in custody at any time during his original probationary term, or any extension thereof. In no event, however, may probation, once granted, be made more onerous without affording the probationer an opportunity to be heard. (People v. Vickers (1972) 8 Cal.3d 451 [ 105 Cal.Rptr. 305 , 503 P.2d 1313 ]; Morrissey v. Brewer (1972) 408 U.S. 471 [ 33 L.Ed.2d 484 , 92 S.Ct. 2593 ].)

It is true, of course, that temporary “stays of execution” to a date certain, i.e., stays that are essentially…