People v. Getty

• Citation: 123 Cal.Rptr. 704,50 Cal.App.3d 101
• Decision Date: 23 July 1975
• Docket Number: Cr. 26393
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Janet Lynn GETTY, Defendant and Respondent.

Page 704

123 Cal.Rptr. 704

50 Cal.App.3d 101

The PEOPLE, Plaintiff and Appellant, v. Janet Lynn GETTY, Defendant and Respondent.

Cr. 26393.

Court of Appeal, Second District, Division 3, California.

July 23, 1975.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen.,--Crim. Div., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and appellant.

Friedman & Blake, and Michael Friedman, Torrance, for defendant and respondent.

POTTER, Associate Justice.

Defendant pleaded guilty to second degree burglary (Pen.Code, § 459) and, on October 5, 1973, was sentenced to six months in county jail. Execution of sentence was suspended and she was granted three years' probation under certain terms and conditions. On March 1, 1974, defendant was found to be in violation of probation; probation was revoked and she was committed to the Youth Authority for the term prescribed by law. The court recommended placement in the Ventura School for Girls.

On April 4, 1974, in proceedings entitled 'Cause Calendared for Correction of CYA Commitment of 3--1--74,' the court ordered: 'The Court states that not having been informed that the defendant was convicted of a misdemeanor, the Clerk is ordered to prepare a nunc pro tunc order as of 3--14--74 adding to the CYA commitment that the defendant is sentenced to the CYA for 6 months.'

Also on April 4, defendant filed a notice of appeal from 'the judgment rendered against' her. (2d Crim. No. 25265.) On September 4, 1974, defendant filed a petition for writ of habeas corpus in this court. (2d Crim. No. 25754.) On or about September 16, 1974, defendant filed a 'Notice of Motion in Superior Court for Order Staying Execution of Judgment (Pen C. § 1243) and for Bail (Pen C § 1274) Pending Appeal.' A hearing was held in the superior court on September 27, ¹ at which the court treated the petition for writ of habeas corpus as if it had been filed in the superior court, determined that defendant should be released from custody and her commitment to the Youth Authority recalled 'as having been improvidently made in the first place,' and decided that probation should be restored, with additional conditions. The court said: 'I do grant the defendant's petition for writ of habeas corpus and I order her discharged from custody.'

Defendant then requested that her appeal and petition for writ of habeas corpus in this court be dismissed, and said dismissal was effected on October 23, 1974.

On November 12, 1974, the People filed in this court a 'Petition for Writ of Mandate and/or Writ of Prohibition' (2d Civ. No. 45237), in order to have the superior court's September 27 modifications and recall of commitment set aside. The petition was denied on November 27, 1974, in an 18-line memorandum opinion by another division of this court. A hearing was denied by our Supreme Court on December 26, 1974.

On November 27, the date of the denial of the People's petition for writ of mandate and/or prohibition, the People filed the instant notice of appeal from the September 27 order of the superior court granting the writ of habeas corpus, 'discharging defendant from the custody of the Youth Authority and releasing defendant on probation.' The appeal lies. (Pen.Code, § 1238, subd. (5).)

Contentions on Appeal

The People submit that the commitment of defendant to the Youth Authority was lawful, and that the superior court therefore had no jurisdiction to recall the commitment. It is further argued that the superior court could not specify the duration of the commitment or place of confinement, and that the superior court had no jurisdiction to entertain the petition for writ of habeas corpus filed in this court. Thus the issues can be defined as follows:

1. Could defendant's commitment to the Youth Authority be modified or recalled?

2. What was the effect, if any, of the September 27 order of the superior

court, and what is the present and proper status of the case? The Superior Court Was Without Jurisdiction to Modify Its Order of Commitment

Defendant's commitment was authorized by Penal Code section 1203.2, subdivision (d), which reads as follows:

'In any case of revocation and termination of probation, including, but not limited to, cases in which the judgment has been pronounced and the execution thereof has been suspended, upon such revocation and termination, the court may, in lieu of any other sentence, commit the person to the Department of the Youth Authority if he is otherwise eligible for such commitment.'

Eligibility is governed by section 1731.5 of the Welfare and Institutions Code; ² as amended in 1969 it provides:

'After certification to the Governor as provided in this article a court may commit to the authority any person convicted of a public offense who comes within subdivisions (a), (b), and (c), or subdivisions (a), (b), and (d), below:

'(a) is found to be less than 21 years of age at the time of apprehension.

'(b) Is not sentenced to death, imprisonment for life, imprisonment For 90 days or less, or the payment of fine, or after having been directed to pay a fine, defaults in the payment thereof, And is subject to imprisonment for more than 90 days under the judgment.

'(c) Is not granted probation.

'(d) Was granted probation and probation is revoked and terminated.

'The Youth Authority shall accept a person committed to it pursuant to this article if it believes that the person can be materially benefited by its reformatory and educational discipline, and if it has adequate facilities to provide such care.'

(Emphasis added.) ³

Such being the case, we hold that for the reasons hereinafter discussed, the superior court was without jurisdiction to issue its September 27 order.

First, at the time of that hearing, defendant's appeal was pending in this court. Upon filing of the notice of appeal, jurisdiction of the cause vested in this court. Ordinarily in that event 'the trial court loses jurisdiction during that period to do anything in connection with the cause which may affect the judgment.' (B. Witkin, Crim.Proc., Appeal § 637, at p. 628. See Code Civ.Proc. § 916; In re Katherine R., 6 Cal.App.3d 354, 356, 86 Cal.Rptr. 281, and cases cited therein.) None of the exceptions to this general rule is here applicable.

In addition, because defendant had begun serving her sentence, ⁴ the court had no jurisdiction to vacate or modify it unless it was improper on its face.

'The general rule is that after a sentence has been entered in the minutes of the court and the defendant has begun serving his sentence, the trial court is without jurisdiction to vacate or modify it. (People v. McAllister, 15 Cal.2d 519, 526, 102 P.2d 1072.)

'Where the sentence pronounced is, on its face, beyond the power of the court to impose for the offense of which the defendant was convicted, the court has jurisdiction, at a later time to impose a legal sentence. (In re Robinson, 142 Cal.App.2d 484, 298 P.2d 656.) That rule is not applicable here, for the sentence is not on its face improper.'

(People v. Clinton, 243 Cal.App.2d 284, 288, 52 Cal.Rptr. 221, 223. See also In re Johannes, 213 Cal. 125, 129--130, 1 P.2d 984; cf. In re Katherine R., supra, 6 Cal.App.3d 354, 86 Cal.Rptr. 281.) While clerical errors are subject to such correction (see, e.g., People v. Shirley, 10 Cal.App.3d 268, 275, 88 Cal.Rptr. 853), no judicial error can be so corrected once service of sentence has begun (In re Wimbs, 65 Cal.2d 490, 498, 55 Cal.Rptr. 222, 421 P.2d 70). As we have indicated, Supra, the sentence in the instant case was proper on its face (and, in fact, the 'improvidence' cited by the trial court constituted neither judicial nor clerical error).

We note, further, that after commitment the court had 'no power to suspend execution of the commitment.' (Welf. & Inst.Code, § 1737.) ⁵ The sole power retained by the court was that reserved by Welfare and Institutions Code section 1739 to leave defendant at liberty or admit her to bail pending the appeal. The order here appealed from, however, was not so limited.

Once the Youth Authority assumed custody of the defendant, it was under statutory direction as follows:

'(a) Except as otherwise provided in this chapter, the Authority shall keep under continued study a person in its control and shall retain him, subject to the limitations of this chapter, under supervision and control so long as in its judgment such control is necessary for the protection of the public.

'(b) The Authority shall discharge such person as soon as in its opinion there is reasonable probability that he can be given full liberty without danger to the public.'

(Welf. & Inst. Code, § 1765.)

The Authority is further empowered as follows:

'(a) When a person has been committed to the authority it may

'(1) Permit him his liberty under supervision and upon such conditions as it believes conducive to law-abiding conduct;

'(2) Order his confinement under such conditions as it believes best designed for the protection of the public;

'(3) Order reconfinement or renewed release under supervision as often as conditions indicate to be desirable;

'(4) Revoke or modify any order except an order of discharge as often as conditions indicate to be desirable;

'(5) Modify an order of discharge if conditions indicate that such modification is desirable and when such modification is to the benefit of the person committed to the authority;

'(6) Discharge him from its control when it is satisfied that such discharge is consistent with the protection of the public.'

(Welf. & Inst.Code, § 1766.)

There is an additional factor compelling reversal of the order discharging defendant from custody. The superior court purported to act as it did on September 27 by considering and granting defendant's petition for a writ of habeas corpus. The court's said action was improper in two respects. First, despite the fact that the Los Angeles County District Attorney...