People v. Blume

• Citation: 183 Cal.App.2d 474,7 Cal.Rptr. 16
• Decision Date: 01 August 1960
• Docket Number: Cr. 1272
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joel Claymen BLUME, Defendant and Appellant.

Page 16

7 Cal.Rptr. 16

183 Cal.App.2d 474

PEOPLE of the State of California, Plaintiff and Respondent, v. Joel Claymen BLUME, Defendant and Appellant.

Cr. 1272.

District Court of Appeal, Fourth District, California.

Aug. 1, 1960.

Engene v. McPherson and Gladys Towles Root, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Clara E. Kauffman, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice.

In March of 1953 the defendant pleaded guilty to four counts of contributing to the delinquency of a minor, a misdemeanor. Sec. 702, Welf. & Inst.Code. Upon suggestion by his attorney that he was an alleged sexual psychopath, the court forthwith adjourned the criminal proceedings and ordered an examination and hearing to determine the issue of sexual psychopathy. The hearing was held accordingly, and on April 14 of the same year the court found the defendant to be a sexual psychopath; ordered his commitment to the Department of Mental Hygiene at Norwalk State Hospital for observation and diagnosis for a period of 90 days; and suspended all criminal proceedings until further order of the court. This action was taken pursuant to the provisions of section 5512 of the Welfare and Institutions Code.

In due course the suprintendent of Norwalk State Hospital filed his report with the court recommending an indeterminate commitment to that hospital. At the defendant's request, the hearing on this matter was continued from time to time, and he was released to the custody of a minister on a probationary basis. These continuances covered a period of two years, and terminated on May 24, 1955, when the defendant was taken into custody. On June 14, 1955 the hearing proceeded and the defendant was committed to Atascadero State Hospital as a sexual psychopath for an indeterminate period. On July 18, 1956 the superintendent of that hospital filed a report pursuant to section 5517 of the Welfare and Institutions Code advising that the defendant would not benefit from any further care and treatment at the hospital; that he was not a menace to the health and safety of others; and recommending that he be given probation. Thereupon the defendant was returned to the court; made an application for probation; was committed to the county jail for a period of one year on each of the four counts of contributing to the delinquency of a minor, to run consecutively; was granted probation for a period of two years on each count, but not to exceed a total of five years; and execution of the judgment of imprisonment was stayed accordingly.

A little over two years later, i. e., December 9, 1958, after an appropriate hearing at which it appeared that the defendant had been apprehended by other counties in the state for sex crimes, the court made an order suspending the defendant's probation and committed him to Atascadero State Hospital under an indeterminate commitment as a violator of the terms of his probation, and as a sexual psychopath, pursuant to section 5518 of the Welfare and Institutions Code.

On June 3, 1959 the defendant moved the court, under section 5519 of the Welfare and Institutions Code, that he be released from the hospital. Thereupon the court authorized the superintendent of Atascadero State Hospital to make a report on the defendant pursuant to the provisions of section 5517 of that code. The superintendent made such a report; advised that the defendant had not recovered from his sexual psychopathy and was still a menace to the health and safety of others; and recommended that he be sentenced for his original offense.

Thereafter, at a hearing on July 7, 1959, the court found that the defendant was a sexual psychopath and a menace to the health and safety of others; ordered that he be imprisoned in the state prison for the offense of contributing to the delinquency of a minor, a misdemeanor; and set 'aside any sentences or rulings or orders heretofore made in the case which would stand in the way of his presently being sentenced.' Preliminarily the defendant had moved that he be given a hearing and a jury trial on the issue of his sexual psychopathy. This motion was denied.

The next day, i. e., July 8, 1959, the defendant filed a notice of appeal from this judgment and the orders denying his motion.

On July 14, 1959 the defendant again appeared before the court which made an order revoking his probation; setting aside the commitment to the state prison; terminating the stay of execution upon the prior judgment of imprisonment in the county jail; committing him to the county jail pursuant to said prior judgment; and remanded him to the custody of the sheriff.

It was stipulated that the last orders might be included in the notice of appeal filed on July 8, and that both appeals would be consolidated for hearing.

The defendant contends that when he filed his notice of appeal from the July 7th judgment of imprisonment in the state prison, the trial court was divested of jurisdiction to thereafter 're-sentence' him to the county jail. The fallacy of this contention is that the trial court did not re-sentence the defendant to the county jail but, rather, set aside the judgment of imprisonment in the state prison and ordered execution of the prior judgment of imprisonment in the county jail. An appeal removes the subject matter thereof from the jurisdiction of the trial court. Gantner v. Gantner, 38 Cal.2d 691, 692, 242 P.2d 329; People v. Sonoqui, 1 Cal.2d 364, 367, 35 P.2d 123; People v. Owens, 71 Cal.app.2d 831, 833, 164 P.2d 28. However, this rule does not preclude the trial court from vacating a judgment which is void upon the face of the record. Pacific Hardware & Steel Co. v. Cheim, 169 Cal.App.2d 339, 343, 337 P.2d 508; Svistunoff v. Svistunoff, 108 Cal.App.2d 638, 641-642, 239 P.2d 650; Macmillan Petroleum Corp. v. Griffin, 99 Cal.App.2d 523, 533, 222 P.2d 69; Fallon v. Superior Court, 33 Cal.App.2d 48, 51, 90 P.2d 858. The July 7, 1959 judgment of imprisonment in the state prison was void because of the previous final judgment of August 16, 1956 directing imprisonment in the county jail. People v. McAllister, 15 Cal.2d 519, 526, 102 P.2d 1072; Barry v. Superior Court, 91 Cal. 486, 27 P. 763; People v. Mess, 65 Cal. 174, 175, 3 P. 670; In re Sullivan, 3 Cal.App. 193, 84 P. 781. The action of the trial court in setting aside the void judgment of July 7, 1959 was proper. The appeal from that judgment presents a moot question and should be dismissed. Agnew v. Superior Court, 118 Cal.App.2d 230, 233, 257 P.2d 661; Ikuta v. Ikuta, 114 Cal.App.2d 108, 249 P.2d 584; M. H. Golden Const. Co. v. El Centro Properties, 112 Cal.App.2d 435, 441, 246 P.2d 942. Under the circumstances the defendant's July 8th notice of appeal did not preclude the trial court from proceeding to enforce the prior judgment of imprisonment in the county jail.

The defendant further contends that he was entitled to a hearing and a jury trial upon the matters presented by the final report of the superintendent of Atascadero State Hospital. Pursuant to the request filed by the defendant on June 3, 1959, the trial court 'authorized' the aforesaid superintendent to submit a report in the premises 'pursuant to the provisions of Section 5517 of the Welfare and Institutions Code.' Thereupon the superintendent certified that the defendant had not recovered from his sexual psychopathy and that he was a person who still was a menace to the health and safety of others, and recommended that he be sentenced for his original offense rather than recommitted for treatment as a sexual psychopath.

Section 5519 of the Welfare and Institutions Code provides that the 'committing court', on its own motion or on motion of the person committed, may require the superintendent of the state hospital to which such person was committed to make a report on the latter's condition as prescribed by said section 5517. The latter section designates three possible classifications for such a person, i. e., (a) that he has recovered from his sexual psychopathy to such an extent that in the opinion of the superintendent he no longer is a menace to the health and safety of others, or (b) that he has been treated to such an extent that he will not benefit by any further care and treatment and is not a menace to the health and safety of others, or (c) that he has not recovered and in the opinion of the superintendent is still a menace to the health and safety of others. The defendant was placed in the latter class by the aforesaid report of the superintendent. Section 5517 of the Welfare and Institutions Code also provides:

'If the opinion so certified is under (a) or (b), the committing court shall forthwith order the return of the person to said committing court and shall thereafter cause the person to be returned to the court in which the criminal charge was tried to await further action with reference to such criminal charge.'

In similar manner, section 5518 of the same code provides:

'If the opinion so certified is under subdivision (c) of Section 5517, the committing court shall forthwith order the return of the person to said committing court and shall thereafter cause the person to be returned to the court in which the criminal charge was tried to await further action with reference to such criminal charge.'

However, section 5517, which deals with those persons classified as (a) or (b), directs the court in which the criminal charge was tried to resume the proceedings and authorizes that court to place the subject person on probation, whereas section 5518, although directing the court in which the criminal charge was tried to resume proceedings, further provides that such court 'after considering all the evidence before it shall impose sentence or make such other disposition of the case as the court may deem necessary and proper; provided, that said court, if satisfied that the person has not recovered from his sexual psychopathy...