People v. Cantrell

Citation197 Cal.App.2d 40,16 Cal.Rptr. 905
Decision Date15 November 1961
Docket NumberCr. 7683
CourtCalifornia Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Jesse James CANTRELL, Defendant and Appellant.

Jesse James Cantrell, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant was found guilty of the crime of Arson, in violation of Penal Code, § 447a 1 and, on June 17, 1954, was sentenced to State Prison for the term prescribed by law. An appeal taken by defendant from this judgment was dismissed on December 27, 1954, pursuant to Rule 17(a) and Rule 30, Rules on Appeal, no appellant's brief having been filed.

On March 8, 1961, defendant filed a Motion for Modification of Judgment, which motion was denied on that date. This is an appeal from the 'final judgment' (presumably the judgment of June 17, 1954), and from the order denying motion for modification of that judgment. Obviously the time to appeal from the 1954 judgment has long since passed and the attempted appeal therefrom must be dismissed.

Appellant claims that the order denying motion to modify judgment is appealable under Penal Code, § 1237, subdivision 3, as an 'order made after judgment, affecting the substantial rights of the party.' The People urge that it is not an appealable order; they also treat the motion as one seeking an order to vacate the judgment in the nature of a petition for writ of error coram nobis, and contend that as such the order should be affirmed upon the merits.

In his motion to modify, appellant first alleges that the evidence submitted fails to sustain the judgment and sentence. This is based upon the claim that 'no evidence was introduced other than the preliminary transcripts'; that 'the preliminary evidence in this case should not have been relied on as the only basis to the Judge's conclusion of guilt'; that 'your petitioner was unaware that such evidence could have been waived'; that the trial judge stated 'that he had petitioner's transcripts' and 'refused to read them because be knew what was in them and had already found petitioner guilty--indicating he had formed a prior opinion of guilt before the trial, denying a fair trial and due process of law.' For these reasons appellant contends the judgment is void.

Appellant next asserts that arson, although not divided into degrees, includes crimes having different prescribed punishments, and that the trial judge 'did not sentence petitioner as law prescribes, but sentenced him only to Chino State Prison.' Appellant's argument in this respect appears to be that he should have been sentenced under Penal Code, § 448a, prescribing a punishment of one to ten years, rather than under § 447a providing for a two to twenty-year sentence. In essence the argument is that the evidence does not sustain a conviction under § 447a. 2

Appellant further claims that the plea of not guilty by reason of insanity was not properly presented to the court as it was 'the public defender's idea' and not his.

The motion concluded with the request that the judgment be 'modified to a lesser degree or to an offense of lesser degree enumerated within the code and statute.'

Not only are the above contentions unsupported by anything in the record, but they could have been raised on a motion for new trial, or by the appeal which appellant started but never completed.

Where a judgment is not void on its face and has been regularly entered the court has no authority to modify or set it aside except in the mode provided by law, such as a motion for a new trial or appeal. (People v. Erickson, 74 Cal.App.2d 339, 340, 168 P.2d 417; People v. Ramirez, 139 Cal.App. 380, 381, 383, 33 P.2d 848; People v. Mason, 163 Cal.App.2d 630, 632, 329 P.2d 614.) 'Unless exceptional circumstances exist * * * a party who has the right to appeal from a judgment and fails to exercise that right is not permitted to move to set it aside and then appeal from the order denying his motion. [Citations].' (People v. Erickson, supra, 74 Cal.App.2d at p. 340, 168 P.2d at page 417.)

In People v. Brattingham, 91 Cal.App. 527, 528, 267 P. 120, 121, appellant, as at bar, contended that an appeal from an order denying a motion for modification of judgment was 'authorized by subdivision 3 of section 1237 of the Penal Code, which provides that an appeal may be taken from an order after judgment affecting the substantial rights of the defendant. It is also said that the court has inherent power at any time to vacate a void judgment. Generally this is true, but the rule is well established that an order made after judgment is not appealable where the motion merely asks the court to repeat or overrule the former ruling on the same facts. As said in De la Montanya v. De la Montanya, 112 Cal. 101, 44 P. 345, 32 L.R.A. 82, 53 Am.St.Rep. 165, this is so because to permit such an appeal 'would be virtually allowing two appeals from the same ruling, and would, in some cases, have the effect of extending the time for appealing, contrary to the intent of the statute.'' People v. Howerton, 40 Cal.2d 217, 220, 253 P.2d 8, 10: "Substantial rights' under subsection 3 of section 1237 are not affected when defendant's objections concern matters that could have been reviewed on timely appeal from the judgment. [Citations.]'

Appellant cites, but misconstrues, the following passage from People v. Thomas, 52 Cal.2d 521, 527, 342 P.2d 889, 892: 'To the statutory rule that 'An appeal may be taken by the defendant * * * from any order made after judgment, affecting the substantial rights of the party' (Pen.Code, § 1237, subd. 3), there is a well established qualification * * *: Ordinarily no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment. [Citations.] In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limited within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.] The considerations are the same whether the matters sought to be presented by motion to vacate actually were presented to the trial court prior to judgment of conviction, or whether such matters should have been but were not so presented.' The court holds: 'The remedy here sought [motion to vacate] is available, however, because the basis of defendant's attack on the judgment is that it is void. Fundamental jurisdictional defects, like constitutional defects do not become irremediable when a judgment of conviction becomes final without appeal (or even after affirmance on appeal * * *) * * * And when such a motion is proper the ensuing order of denial is appealable even though the facts which constitute the claimed jurisdictional defect were known to all concerned, including the trial court, when sentence was pronounced.' (Pp. 528-529, 342 P.2d at page 893.)

It is clear that appellant's motion has presented no fundamental jurisdictional defect, and the judgment is not void on its face. The errors, if any, are not such as to render the judgment void. (See, In re Bouchard, 38 Cal.App. 441, 443, 176 P. 692; Ex parte Gibson, 31 Cal. 619, 627; People v. Carkeek, 35 Cal.App.2d 499, 505, 96 P.2d 132.)

Appellant places particular reliance upon People v. Walker, 132 Cal. 137, 64 P. 133, in which it was held that defendant was entitled to appeal from the order denying his motion to correct the minutes and vacate the judgment for the reason that an appeal from the judgment would not have brought up a record showing the error of which defendant complained. Such is not the situation here insofar as the contentions of appellant, above summarized, are concerned. They encompass matters known to appellant at the time of trial and could have been reviewed upon an appeal from the judgment.

One further statement is contained in appellant's motion,--that he was 'forced to drop said appeal under duress,' referring to the dismissal of his appeal from the judgment of June 17, 1954. The assertion is completely unsupported, and appellant does not, nor could he, attempt to reinstate the appeal in this proceeding. (See, Chamberlain v. Reed, 16 Cal. 208; Sanders v. Warden, 106 Cal.App.2d 707, 708, 236 P.2d 19.)...

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