People v. Finkel, Cr. 2604

• Citation: 94 Cal.App.2d 813,211 P.2d 888
• Decision Date: 28 November 1949
• Docket Number: Cr. 2604
• Parties: PEOPLE v. FINKEL.
• Court: California Court of Appeals Court of Appeals

Page 888

211 P.2d 888

94 Cal.App.2d 813

PEOPLE v. FINKEL.

Cr. 2604.

District Court of Appeal, First District, Division 2, California.

Nov. 28, 1949.

Hearing Denied Dec. 27, 1949.

Joseph Finkel, Represa, in pro per.

Fred N. Howser, Attorney General of the State of California, David K. Lener, Deputy Attorney General, Edmund G. Brown, District Attorney of the City and County of San Francisco, Francis Mayer, Assistant District Attorney, San Francisco, attorneys for respondent.

NOURSE, Presiding Justice.

The appellant herein was convicted in a jury trial, on a single indictment containing thirteen counts, of six counts of felony, to wit, three of burglary, one of rape, one of robbery and one of assault with intent to commit rape, and of one count of simple assault. The offenses were committed against three individuals on three separate occasions. On each occasion there was a burglary and an attack on the person of a female inhabitant, and on one occasion moreover a robbery. On February 11, 1944, defendant was in one judgment sentenced to imprisonment at San Quentin for the period prescribed by law with respect to the six felony counts, the fix sentences to run consecutively, and to five months in the county jail for the simple assault, sentence to run concurrently with time already served. On appeal the judgment was affirmed by this court, People v. Finkel, 70 Cal.App.2d 508, 161 P.2d 298, and appellant's petition for a hearing by the Supreme Court was denied September 13, 1945.

On April 25, 1949, appellant filed in the superior court a motion to annul, vacate and set aside the portion of the judment ordering consecutive terms of imprisonment, on the ground that the trial court was without jurisdiction to order terms of imprisonment to run consecutively where all were imposed by a single judgment and because of other circumstances to be stated hereafter. From the order denying said motion to annul, this appeal is taken by appellant in propria persona.

Respondent argues that appellant cannot show any defect in the original judgment of February 11, 1944, as it was not made part of the record in this case. We think it expedient to take judicial notice of the transcript of the judgment contained in our record on the first appeal, Hammell v. Britton, 19 Cal.2d 72, 75, 119 P.2d 333; City of Los Angeles v. Abbott, 217 Cal. 184, 193, 17 P.2d 993, the more so as the text of the judgment is undisputed and quoted in respondent's brief.

It seems doubtful whether the remedy of a motion to annul was available to defendant and whether the order denying such motion is appealable. See People v. Flohr, 30 Cal.App.2d 576, 578, 86 P.2d 862; People v. Scranton, 50 Cal.App.2d 492, 123 P.2d 132. However, as the denial was clearly correct on the merits, we prefer to base our decision on that ground, without determining the preliminary questions mentioned.

For his contention that the trial court lacked jurisdiction to order terms of imprisonment to run consecutively when all are imposed in one judgment appellant relies on the text of § 669 of the Penal Code, which, as far as it is pertinent here, reads: 'When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently, or whether the imprisonment to which he is or has been sentenced upon the second or other subsequent conviction shall commence at the termination of the first term of imprisonment to which he has been sentenced, or at the termination of the second or subsequent term of imprisonment to which he has been sentenced, as the case may be * * *.' (Italics ours.) He argues that the use of the words 'the second or other subsequent judgment' excludes the power to make sentences run consecutively when they are contained in one single judgment. The section has never been construed in that manner, see for recent example of consecutive terms imposed in a single judgment, People v. Holman, 72 Cal.App.2d 75, 100, 164 P.2d 297; People v. Rivas, 85 Cal.App.2d 540, 193 P.2d 151; People v. Palacio, 86 Cal.App.2d 778, 195 P.2d 439, and should not be so construed. It cannot be the intention of the legislature that so substantially different effects as the possibility or impossibility of consecutive terms should depend on the mere choice of the form in which sentence is pronounced, in a single or in separate judgments. Compare People v. Carr, 6 Cal.2d 227, 230, 57 P.2d 489. The beginning of the section clearly shows the legislative intent that the discretion of the court to make terms of imprisonment run concurrently or consecutively shall exist in all cases 'When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges * * *.' This statement of the field covered by the section includes the situation existing in this case. The further reference to 'the second or other subsequent judgment' as the means by which the discretion should be exercised cannot be intended to restrict the wide extent stated. If the legislature should have intended such purposeless restriction it would have said so expressly, not by indirection. That no such result was intended becomes still clearer when the present text is compared...