People v. Fritz

• Decision Date: 26 August 1969
• Docket Number: Cr. 14964
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lewis Donald FRITZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 506

80 Cal.Rptr. 506

275 Cal.App.2d 866

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lewis Donald FRITZ, Defendant and Appellant.

Cr. 14964.

Court of Appeal, Second District, Division 5, California.

Aug. 26, 1969.

Hearing Denied Oct. 22, 1969.

Albert D. Silverman, Canoga Park, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Arthur B. Rosenfeld, Deputy Atty. Gen., for plaintiff and respondent.

REPPY, Associate Justice.

Defendant was charged by information with a two-count violation of Penal Code section 211, robbery. The information charged that defendant was armed with a deadly weapon at the time of the commission of the offenses. In addition the information alleged that defendant had suffered a prior felony conviction. On June 17, 1965, defendant, represented by counsel was arraigned and pleaded 'Not guilty,' and denied the existence of the prior felony conviction. Defendant waived time for trial which was set for August 3, 1965. On that date defendant was present with counsel. He waived jury and consented that the case be tried on the evidence taken at the preliminary hearing. The transcript was received in evidence; and the case was continued to August 26, 1965, presumably to allow the trial judge to consider the material in the transcript and then to hear argument and render a decision.

The case was called on August 26, 1965. Defendant was not present. The bailiff said to the judge: 'Your Honor, defendant Fritz went to Orange County. ¹ I guess they got a court order ² and got him.' The matter was continued to August 30, 1965.

On August 30, 1965, defendant was was present with his attorney. He advised the judge that defendant had no additional evidence, but he challenged the jurisdiction of the court to proceed, claiming it had been lost by the relinquishment of defendant to Orange County without acquiescence on his part. ³ He moved for a continuance so that he could present authorities on the point. The motion was denied. Defense counsel then advised the court that defendant had just told him that he wished to withdraw his waiver of a jury trial and and his consent that the case be tried on the evidence contained in the preliminary transcript. Counsel made a motion to that effect which was denied. Then, obviously not taking any stock in defense counsel's suggestion that the court had lost jurisdiction, the judge found defendant 'guilty as charged' on both counts. A date for sentencing was discussed. Defense counsel stated to the court: 'May the record indicate that I am at this time moving for a new trial on the date that the Court sets the hearing.' The matter was then set for 'sentence and motion for new trial' for September 17th. On that date the case was called before a different judge. Defendant was not present. The bailiff said to the judge: 'Your Honor, my book shows 'no go' on him, that he is in custody in Orange County.' The judge ordered a bench warrant to be issued and executed.

On January 6, 1966 (129 days after defendant had been found guilty), with defendant and his attorney present, the case was called before the second judge. Defense counsel pointed out that in the interim defendant had gone to prison from Orange County. ⁴ The matter was continued to January 7 and, apparently, then to January 10, 1966, so that the trial judge could preside. The judge promptly asked if there was '(a)ny legal cause why sentence should not now be pronounced?' Defendant's attorney urged that the court had twice lost jurisdiction by reason of relinquishing defendant to Orange County and stressed that on the second occasion Orange County had not resurrendered him. Without labeling it a motion for new trial, he also argued that it was mandatory that defendant be sentenced within the time prescribed by Penal Code section 1191 (21 days). The judge ruled against both causes and sentenced defendant to state prison on both counts. This was 133 days after defendant had been found guilty. The judge directed that the sentences on the two counts run concurrently with each other but consecutively with 'any sentence now being served by the defendant.' (This, of course, was the Orange County sentence.) Defendant's counsel objected to this on the ground that if the court had kept defendant and proceeded to sentence him within the time required by Penal Code section 1191, it would have been impossible to impose sentences consecutive to that pronounced in Orange County. The judge, remarking that counsel might have a point and that '(i)t might be well if the Court on a higher level pondered the matter,' remanded defendant to the sheriff for delivery to the director of corrections.

Defendant did not appeal. He asserts in his verified statement: 'Counsel of record stated he would appeal, but he did not appeal; furthermore, defendant has learned that his counsel of record was found guilty and sentenced by a federal court on a felony charge; whereby, defendant was unaware as to how to proceed to attack the illegal judgment rendered by this court.'

On August 14, 1967, defendant filed a notice of motion, with supporting papers, to vacate the judgment of January 10, 1966, imposing sentence. The motion came before a third judge on November 2, 1967. Defendant was present and represented by a deputy public defender. The judge denied the motion, remarking that that would 'speed up the process as to any remedies * * * (defendant) might have.' Defendant's appeal from the order denying the motion to vacate followed.

In both defendant's motion to vacate judgment and the brief on appeal, the following contentions are made (as to those which permit brief rulings, such rulings are indicated in parenthetical observations following the contention).

1) The Los Angeles superior court ousted itself of jurisdiction to try and/or punish defendant either by relinquishing him to Orange County after setting the case for, but prior to conducting, trial, or by again so relinquishing him after finding him 'guilty' and setting the matter for, but prior to, sentencing.

(Defendant cites no authority for this proposition. However,the general rule is that '* * * a sovereign may surrender * * * an offender to another sovereign for trial without losing the right to have him returned for trial or punishment after judgment in the courts of the second sovereign has been rendered (citation][Defendant cites no authority for this proposition. However the general rule is that '* * * a sovereign may surrender * * * an offender to another sovereign for trial without losing the right to have him returned for trial or punishment after judgment in the courts of the second sovereign has been rendered (citation], and that accused has no right to complain of the time or manner of exercise of the right, or of the failure to exercise it.' (22 C.J.S. Criminal Law § 111, p. 308--309; see also People v. Jackson, 165 Cal.App.2d 183, 331 P.2d 981, where the defendant was transferred between Alameda and San Francisco counties and no concern was expressed as to any jurisdictional problem.)

2) Defendant's sentence on count II was void because that count had previously been dismissed.

(Perhaps defendant has the circumstances in the Orange County case confused with what occurred in this one. There was no such dismissal, and no reason for one. Defendant never asserted that such a step had been taken on several occasions when he undoubtedly would have, had such a dismissal been made or even proposed.)

3) The court failed to pronounce judgment within 21 days after conviction, a violation of Penal Code section 1191. Defendant was prejudiced by the delay for the following reasons: a) because it permitted the Orange County sentence to intervene and become one as to which the trial judge felt he could direct the two-count sentences he was imposing to run consecutively; b) because it caused defense counsel to forget to move the court for a new trial; and c) because 'the approximate five months' defendant waited to be sentenced (actually it was only 112 days beyond the statutory 21 days) is time the adult authority will not credit him with in connection with the term for his convictions in the instant case.

(Point (3) will be considered in more detail later in the opinion.)

In the brief on appeal the following points were raised which had not been included specifically in defendant's motion to vacate the judgment:

1) The judge hearing the motion to vacate judgment felt he lacked jurisdiction to pass on it, and he failed to consider it on its merits.

(However, after some discussion about the question, the judge accepted the fact that he had jurisdiction. He denied the motion rather than dismiss the proceeding for lack of jurisdiction. The record reflects that the judge carefully read and pondered over the compilation of documents submitted by the defendant.)

2) Sentencing is a part of the trial and the delay in carrying out this part of the trial deprived defendant of his constitutional right to a speedy trial.

(This point is parallel with the Penal Code-section-1191 violation and will be treated with it.)

3) Because the trial judge failed to find that he was armed with a deadly weapon, there was no basis for fixing the degree of robbery at first.

(The trial jduge stated from the bench that he found the defendant 'guilty as charged' and this was sufficient to include the factor of being armed because the information had included such a statement. This finding supported the fixing of the degree of robbery as first. (See People v. Flohr, 30 Cal.App.2d 576, 581, 86 P.2d 862; People v. Cooks, 235 Cal.App.2d 6, 14, 44 Cal.Rptr. 819; cf. People v. Blackburn, 261 Cal.App.2d 554, 559--560, including footnote on p. 559, 67 Cal.Rptr. 918.)

In the motion to vacate judgment, the following contentions were made which are not included in the points in the brief on...