People v. Belton, Cr. A

• Citation: 84 Cal.App.3d Supp. 23,149 Cal.Rptr. 231
• Decision Date: 08 August 1978
• Docket Number: Cr. A,No. 16176,16176
• Court: United States Superior Court (California)
• Parties: 84 Cal.App.3d Supp. 23 The PEOPLE, Plaintiff and Appellant, v. Jesse BELTON, Defendant and Respondent (And 13 other cases.) * Appellate Department, Superior Court, Los Angeles County, California

Page 231

149 Cal.Rptr. 231

84 Cal.App.3d Supp. 23

The PEOPLE, Plaintiff and Appellant, v. Jesse BELTON, Defendant and Respondent (And 13 other cases.) ^*

Cr. A. No. 16176.

Appellate Department, Superior Court, Los Angeles County, California.

Aug. 8, 1978.

Burt Pines, City Atty., Laurie Harris, S. Thomas Todd, Marie Corlett Blits and Mark L. Brown, Deputy City Attys., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender, Dennis A. Fischer and James H. Barnes, Deputy Public Defenders, Peter A. Ross, John A. Montag, Los Angeles, Leonard R. Milstein, Encino, Marshall L. Rubin and Peter Giannini, Los Angeles, for defendant and respondent.

COLE, Presiding Justice.

In each of these cases the defendant was charged with violating Health and Safety Code section 11550 and pleaded guilty or nolo contendere to the charge. The section provides for a mandatory 90-day-minimum sentence, whether imposed directly or as a condition of probation, and states that "In no event does the court have the power to absolve a person who violates this section from the obligation of spending at least 90 days in confinement in the county jail." In each of the cases, however, the trial court sentenced the defendants to the county jail and then suspended sentence, placing the defendants on probation on varying conditions, none of which included a jail term as long as 90 days. The People have appealed in each case from "the order of the court absolving the defendant from the obligation of spending at least 90 days in confinement in the county jail."

Appealability

Since the sole ground urged by the People is that the trial courts imposed sentences which are in violation of the statute, defendants argue that no appeal lies. First, they assert that Penal Code section 1466, subdivision 1, which lists the instances where the People may appeal from the municipal courts in criminal cases, does not authorize appeals from sentences. The defendants in these cases are in error. In contrast to other cases where trial courts have imposed sentences of incarceration in the county jail, without suspending execution of the sentence (in which instance the People may not appeal People v. Ventura (1978) 84 Cal.App.3d ---, 148 Cal.Rptr. 581, here the sentences were suspended and then an order was made placing the defendants on probation. In such a situation the order suspending the already imposed sentence and placing the defendant on probation is an order made after judgment affecting the substantial rights of the People and is made appealable by Penal Code section 1466, subdivision 1(e). (People v. Warner (1978) 20 Cal.3d 678, 682, fn. 1, 143 Cal.Rptr. 885, 574 P.2d 1237; People v. Mendevil (1978) 81 Cal.App.3d 84, 88, 146 Cal.Rptr. 65; People v. Holly (1976) 62 Cal.App.3d 797, 801-802, 133 Cal.Rptr. 331; People v. Villegas (1971) 14 Cal.App.3d 700, 703, 92 Cal.Rptr. 663; People v. Orrante (1962) 201 Cal.App.2d 553, 556, 20 Cal.Rptr. 480; see People v. Beasley (1970) 5 Cal.App.3d 617, 630, 85 Cal.Rptr. 501.)

Double Jeopardy

The defendants argue further, however, that if the People succeed on appeal the defendants will face the prospect of increased punishment and further prosecution. Thus it is contended that the proscription of double jeopardy precludes maintenance of these appeals.

The argument is not well taken because the double jeopardy concept simply does not apply in this situation. We start with the reminder that Health and Safety Code section 11550 expressly states that the court Has no power to avoid sentencing a defendant convicted of violating that statute to 90 days in jail. The sentence imposed is void and the trial court is free to impose the legally required sentence. "Authority is ample that when the sentence is beyond the power of the court to impose it is void and the court has the power at a later time to impose the legally provided sentence. . . ." (In re Robinson (1956) 142 Cal.App.2d 484, 486, 298 P.2d 656, 658. See Kennedy v. United States (9 Cir. 1964) 330 F.2d 26, 29.) ¹

The courts have spoken on this issue before. In Bozza v. United States (1947) 330 U.S. 160, 166-67, 67 S.Ct. 645, 648, 91 L.Ed. 818, 822, the statute required that the court impose a minimum mandatory fine And imprisonment. The trial court instead gave defendant only a prison sentence. The error being called to its attention, it recalled defendant the same day and added the fine to the sentence. The court rejected a double jeopardy claim stating that "the Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. . . ." (Ibid.)

The Bozza principles were expressly followed and applied in Hayes v. United States (1957) 102 U.S.App.D.C. 1, 249 F.2d 516. There a defendant was also sentenced to less than the minimum imprisonment required by statute. The Hayes court, too, rejected a double jeopardy claim. It held (102 U.S.App.D.C. at pp. 2, 3, 249 F.2d at pp. 517, 518): "We are persuaded also that a sentence which does not conform with the applicable statute may be corrected though defendant has not appealed from the judgment embodying the invalid sentence, has begun to serve it, and steps to correct it are not initiated by him but by the Government. This is such a case. . . ."

The same result was reached in Mathes v. United States (9 Cir. 1958) 254 F.2d 938. There, as part of an agreement with defendant incidentally, as here, without the prosecutor's consent the court sentenced defendant on each of two counts to two years in prison and suspended the sentence when the statute required a five-year mandatory minimum sentence. The error being called to its attention, the trial court resentenced defendant to serve five years, first having given him an opportunity to withdraw his not guilty plea. Affirming the resentencing order and citing Bozza v. United States, supra, the court said: "It is well settled that a sentence which does not comply with the letter of the criminal statute is not only erroneous but void. Where such an erroneous sentence is imposed by the trial court, it may be corrected in conformity with the provisions of the Statute, and the Appellant would not be placed in double jeopardy by so correcting it." (254 F.2d at p. 939.) Similar results were reached in Dagley v. State (1921) 144 Tenn. 501, 234 S.W. 333 and in State v. Layne (1896) 96 Tenn. 668, 36 S.W. 390. In Layne a fine was imposed that was less than the statutory minimum. In holding that a second prosecution would lie at which the higher fine was imposed, the Tennessee Supreme Court said (36 S.W. at p. 391): ". . . The plea, (of former conviction) to be good, must not only aver that the defendant was fined, and the amount of the fine, but the amount of the fine must appear to be such as the justice was authorized to impose in the particular case. The reverse appears in the plea before us. The minimum fine authorized by the statute . . . is $20.00; Hence the judgment for a less sum was coram non judice and void. There was no authority whatever for the judgment actually rendered, and as a consequence that judgment was an absolute nullity, and, being so, could afford the defendant no advantage or protection in a subsequent prosecution for the same offense. . . ." (Emphasis supplied.)

In People v. Taylor (1971) 15 Cal.App.3d 349, 93 Cal.Rptr. 257, a defendant was convicted of attempted grand theft and of assault with a deadly weapon. The trial court sentenced defendant to serve time in the county jail on the assault count. No sentence at all was imposed on the attempted grand theft count. In a prior appeal by defendant the Court of Appeal had affirmed the conviction and remanded with the express direction that the trial court correct the error by imposing a sentence on the attempted grand theft count. The trial court did so, sentencing defendant to state prison. Defendant again appealed. The Court of Appeal rejected his contention that he was placed in double jeopardy by a second resentencing hearing, citing among other cases Bozza v. United States, supra, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 and Hayes v. United States, supra, 102 U.S.App.D.C. 1, 249 F.2d 516. The court held that it was clear that a sentencing error may be corrected without placing defendant in double jeopardy. (15 Cal.App.3d at p. 354, 93 Cal.Rptr. 257.)

We note also that in several cases the People have been successful in appeal from matters involving sentencing where the ultimate result was the likelihood that the unsuccessful defendant-respondent would be subject to increased punishment. While the applicability of double jeopardy aspects was not discussed in these cases the fact that the courts contemplated the possibility of increased punishment at the least illustrates that we do not plow new ground here. (People v. Warner, supra, 20 Cal.3d 678, 143 Cal.Rptr. 885, 574 P.2d 1237; People v. Villegas, supra, 14 Cal.App.3d 700, 704-705, 92 Cal.Rptr. 663; People v. Beasley, supra, 5 Cal.App.3d 617, 85 Cal.Rptr. 501.)

In support of their double jeopardy argument the defendants rely on Ex Parte Lange (1873) 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872. The case is of no aid to them. In Lange a statute provided that an offense was punishable by one year in jail Or a fine of $10 to $200. The court imposed a sentence of one year And $200. Defendant paid the $200 but complained of the illegal sentence. The court thereupon sentenced him to one year. The United States Supreme Court granted relief since double jeopardy principles prevent two punishments for the same offense and defendant had already been punished by payment of the fine. The United States Supreme Court itself distinguished Lange in Bozza v. United States, supra, 330 U.S. 160, 167, footnote 2, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822, noting that the petitioner in Lange "had paid his fine and therefore suffered punishment under a valid sentence" while in Bozza "the petitioner had...