People v. Ford

• Decision Date: 25 July 1966
• Docket Number: C,Cr. 9229
• Citation: 416 P.2d 132,52 Cal.Rptr. 228,65 Cal.2d 41
• Parties: , 416 P.2d 132 The PEOPLE, Plaintiff and Respondent, v. William J. FORD, Defendant and Appellant. r. 9298. In Bank
• Court: California Supreme Court

Page 228

52 Cal.Rptr. 228

65 Cal.2d 41, 416 P.2d 132

The PEOPLE, Plaintiff and Respondent, v. William J. FORD, Defendant and Appellant.

Cr. 9229, Cr. 9298.

Supreme Court of California,

In Bank.

July 25, 1966.

Rehearing Denied Aug. 24, 1966.

[416 P.2d 134] [65 Cal.2d 44] Eric A. Rose, Long Beach, under appointment by Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

This is the second appeal in this case. The first trial resulted in a first degree murder verdict, and the jury fixed the penalty as death. That judgment was reversed because of errors in the instructions. (People v. Ford, 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892.) The murder charge was retried and again the jury found the defendant guilty and imposed the death penalty. The appeal from this judgment is automatic. (Pen.Code, § 1239, subd. (b).) Defendant also appeals from judgments sentencing him as a result of certain felony convictions obtained at the first trial which were affirmed on the previous appeal.

Defendant in a multicount information was charged in count 1 with the burglary of the home of John B. Roope on June 2, 1961. In the remaining counts, all referring to events occurring on June 9, 1961, defendant was charged with possessing a concealable weapon in violation of Penal Code, section 12021 (count 2), robbing Roope of $29 (count 3), kidnaping Roope (count 4), assaulting Ben Hardy with a dangerous weapon (count 5), kidnaping defendant's wife, Emma Ford (count 6), and murdering David Harvey Stahl (count 7). Defendant pleaded not guilty to all counts. Pleas of not guilty by reason of insanity were withdrawn when the cause was submitted to the jury on the not guilty pleas. On the first trial the jury convicted defendant on each count, finding the burglary, the robbery, and the murder to be of the first degree. By stipulation the question of penalty was submitted to the jury on the evidence received at the murder trial. The jury fixed the penalty at death, and defendant's motion for a new trial or for reduction of the penalty was denied.

In a unanimous opinion written by Justice Schauer, we affirmed the judgments of conviction on all of the non-homicide counts, except the burglary count, as to which the judgment was modified. We reversed the judgment on the murder count, however, and remanded the cause for a new trial. The grounds for reversal were that the trial court erred in giving improper instructions on intoxication and in failing to give of its own motion the required cautionary instruction as to defendant's alleged oral admission. These errors were held to have been prejudicial. Except for the testimony of defendant, he not having testified at the retrial, and the evidence on premeditation, the essential facts are set forth in our former opinion and need not be repeated here. (People v. Ford, supra, 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892.)

On March 18, 1964, after the remittitur on the previous appeal was filed, the matter came on regularly for arraignment and sentence of defendant on counts 1 through 6 and for setting of a trial date on count 7 in accordance with the remittitur. Defendant appeared without counsel. In accordance with defendant's wishes, John Seitz, who had been defense counsel at the first trial, was appointed in an advisory capacity for the arraignment. A motion for a continuance to March 30, 1964, was granted for the purpose of determining whether Attorney Seitz would accept appointment as defense counsel at the new trial. Defendant waived time for sentencing and announced that at a time previous to the rearraignment he wished to object to the jurisdiction of the court to rearraign him. Defendant requested and the court ordered that a hearing on that objection be set for March 25, 1964. After several continuances new counsel were appointed to represent defendant at retrial, and the judge who presided at the first trial disqualified himself from retrying the case. Further continuances were granted on motions by defendant.

On July 31, 1964, the superior court vacated and set aside the finding of the jury with respect to burglary of the first degree in count 1, and pursuant to the remittitur found the offense to be of the second degree, and modified the judgment as ordered in our decision. (People v. Ford, supra, 60 Cal.2d 772, at pp. 801--802, 36 Cal.Rptr. 620, 388 P.2d 892.)

On August 21, 1964, defendant was arraigned on the information as to the murder charge, and pleaded not guilty, not guilty by reason of insanity, and former jeopardy. Execution of the sentences on the nonhomicide counts was stayed.

Two grounds are presented as the basis for defendant's appeal from the judgment entered as a result of our affirmance of the non-homicide counts on the previous appeal.

Defendant first complains that he was improperly sentenced on the non-homicide counts because sentence was not pronounced within the time limit set in Penal Code, section 1191, ¹ and that he is therefore entitled to a new trial on those counts as provided in Penal Code, section 1202. ²

When the cause was called in the superior court for arraignment for sentencing defendant moved for a continuance, stating that before arraignment he wished to object to the jurisdiction of the court. Defendant waived the 60-day time limit for trial, but waiver of time to be sentenced was not mentioned. Before the 60 days expired, however, defendant moved to have the hearing on his objection continued. This motion was granted. Subsequently, on April 20, 1964, defendant moved for a three-week continuance and waived time as to All matters.

A defendant cannot complain that he was not sentenced within the time period prescribed by section 1191 of the Penal Code where he waives time for or sanctions the postponement of his sentencing. (People v. Daly, 168 Cal.App.2d 169, 173, 174, 335 P.2d 503.) In the instant case defendant expressly waived time to be sentenced and cannot now be heard to complain that he was sentenced beyond the 21-day period set forth in section 1191.

Further, as stated in People v. Williams, 24 Cal.2d 848, 850, 151 P.2d 244, 245, 'Although section 1191 provides that the judgment must be pronounced within a designated period, it has been consistently held that failure to pronounce judgment within the time specified is not jurisdictional. * * * (and) 'does not automatically entitle the defendant to a new trial under the provisions of section 1202 of the Penal Code, nor does such delay render the judgment void for lack of jurisdiction. A judgment so pronounced may not be reversed on appeal unless the delay results in a miscarriage On August 21, 1964, after several continuances, the trial court pronounced judgment and sentenced defendant on the felony convictions obtained at the first trial in conformity with our earlier ruling. (People v. Ford, supra, 60 Cal.2d 772, at pp. 801--802, 36 Cal.Rptr. 620, 388 P.2d 892.) Defendant was separately sentenced to state prison for the term prescribed by law for each of the non-homicide felonies of which he stood convicted, the sentences to run concurrently.

[416 P.2d 136] of justice * * *. " There was here no such miscarriage of justice.

Defendant asserts that the sentences constitute double punishment in violation of Penal Code, section 654. ³ He argues that he cannot be punished for both the kidnaping and robbery of Roope because they were part of a continuous and nondivisible transaction.

The robbery of which defendant was convicted took place on the morning of June 9, 1961. At that time defendant entered the house of John Roope located near Atascadero and, with a pistol which he had burglarized from Roope's house on an earlier occasion, forced Roope to give him $25 and some additional shells for the pistol. Defendant, who did not have an automobile, thereupon compelled Roope to drive him to Creston. When they arrived in Creston defendant kidnaped his wife, who was there living with another man, and committed an assault with a dangerous weapon upon Ben Hardy. Defendant took the wheel of Roope's car when he departed from Creston with his wife and children; Roope, however, was forced to accompany the group. A few hours later, after defendant drove about the countryside without aim or purpose and otherwise acted irrationally, defendant shot Deputy Sheriff David Harvey Stahl after the latter, who knew of the assault in Creston, stopped defendant and asked him to hand over his gun.

Whether defendant's course of criminal conduct in robbing and kidnaping Roope is divisible and therefore gives rise to more than one act within the meaning of section 654 depends upon his intent and the determination whether he committed both offenses incident to one objective. (Neal v. State of California, 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839; People v. Jaramillo, 208 Cal.App.2d 620, 628, 25 Cal.Rptr. 403.)

The case of In re Chapman, 43 Cal.2d 385, 273 P.2d 817, presents a factual situation approximating the facts in the instant case with respect to the question of divisible acts. In Chapman the defendant committed a robbery while armed with a deadly weapon with which he menaced the victim and obtained from him a sum of money through thus placing him in fear; after the victim had produced the money, he attempted to escape. Defendant's accomplice tackled him and the defendant then assaulted him with the weapon. It was held that the assault was not a means of perpetrating the robbery but a separate act that followed after the robbery was completed, and that therefore the defendant was guilty of two punishable acts. ⁴ Similarly, in the case now before us the kidnaping was not a means of perpetrating the robbery and was also preceded in time by the robbery. On this theory the trial court did not violate the proscription of section 654 against...