People v. Hales

• Decision Date: 29 August 1966
• Docket Number: Cr. 5403
• Citation: 53 Cal.Rptr. 161,244 Cal.App.2d 507
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Harold Frederick HALES, Defendant and Respondent.

Page 161

53 Cal.Rptr. 161

244 Cal.App.2d 507

The PEOPLE of the State of California, Plaintiff and Appellant, v. Harold Frederick HALES, Defendant and Respondent.

Cr. 5403.

District Court of Appeal, First District,

Division 1, California.

Aug. 29, 1966.

Hearing Denied Oct. 26, 1966.

Thomas C. Lynch, Atty. Gen. of State of California, Albert W. Harris, Jr., Asst. Atty. Gen., Jay S. Linderman, Deputy Atty. Gen., San Francisco, for appellant.

Robert Y. Bell, Ukiah, for respondent (Under appointment of District Court of Appeal).

SIMS, Justice.

The People have appealed from orders of the trial court which (1) purported to vacate and set aside a prior judgment which sentenced the defendant to prison following his conviction by jury verdict of burglary in the second degree in violation of section 459 of the Penal Code and (2) thereupon granted his motion for new trial.

The People contend that the trial court had no power or authority to vacate the judgment, and that defendant's motion for a new trial was not timely made and should not have been granted by the trial court. The trial court does have power and authority to vacate its judgment in criminal matters on proper showing. (See People v. Wadkins (1965) 63 Cal.2d 110, 113, 45 Cal.Rptr. 173, 403 P.2d 429; People v. Shipman (1965) 62 Cal.2d 226, 230, 42 Cal.Rptr. 1, 397 P.2d 993.) The record, however, fails to reflect that the motion to vacate was made prior to entry of judgment or prior to execution of sentence, nor does it assert grounds for relief as an application for a writ of coram nobis after final judgment. The trial court, therefore, had no authority to set aside its judgment. Since the motion for new trial was not made or determined before judgment there was no authority to grant it.

On February 3, 1965, an information was filed charging the defendant with burglary and two prior felony convictions. The following day the defendant appeared for arraignment and upon his requesting counsel the public defender was appointed to represent him. He thereupon entered his plea of not guilty to the principal offense and admitted the prior convictions. Following trial on March 1, 2, and 3, 1965, the jury returned a verdict of guilty of burglary in the second degree, and the matter was continued for hearing of a probation officer's report and for pronouncement of judgment.

On March 25, 1965, the defendant was arraigned for judgment and by his counsel advised the court that there was no legal reason to show why judgment should not then be pronounced. The court denied probation and sentenced the defendant to state prison for the term prescribed by law. This judgment was entered in the minutes of the court.

On the same day the defendant filed a notice of appeal. According to recitals in the People's opposition to defendant's motion, on April 5, 1965, the court stayed execution of the judgment until further order of court. ¹

On May 11, 1965 defendant through new counsel filed his 'Motion to Permit Filing of Motion for New Trial (Motion to Vacate Judgment)' accompanied by points and authorities, the defendant's declaration of merits, and a declaration of his attorney. At the same time he filed a 'Notice of Motion for New Trial' predicated upon five of the grounds set forth in section 1181 of the Penal Code. Of these the only ground subsequently pressed was insufficiency of the evidence, and the court ultimately purported to grant the motion on the grounds that the verdict was contrary to law and contrary to the evidence.

The motions came on for hearing on May 21, 1965. At that time the court expressed the feeling that an injustice would be done in not granting a new trial, but questioned its jurisdiction to proceed in the matter because of the pending appeal. It continued the matter for further hearing.

At that hearing, on May 24, 1965, the People filed written opposition and questioned the court's jurisdiction to consider the matter, not only on the grounds that the appeal divested it of a jurisdiction, but also because it had no power to modify its judgment after it was entered in the minutes. The defendant, after conferring with counsel, filed an abandonment of his appeal. (See Cal.Rules of Court, rule 38; Witkin, Cal.Criminal Procedure (1963) § 719, p. 697.)

The court thereupon entertained defendant's motion to permit the filing of a motion for a new trial which was also referred to as 'a motion to vacate judgment' and 'a writ of error coram nobis.' The motion was made on the grounds that defendant's failure to file a motion for new trial was due to mistake, inadvertence, surprise, and excusable neglect on the part of the defendant. The declarations originally filed in support of the motion merely averred that the defendant was advised by counsel and believed that he had a good defense on the merits, and that he had desired to take every procedural means within his power to obtain an adjudication of his innocence.

At the hearing he testified that at all times he wished that every procedural step be taken on his behalf in order to protect his liberty and to assert his innocence; that at the time of sentence he did not understand the procedural conditions or legal requirements under which a motion for new trial could be filed; that he would have asked for a new trial instead of appeal had he known the foregoing; that he did not intentionally intend to waive his right to a new trial; that he first ascertained that he had not filed a motion for new trial in the time normally allotted when he communicated with his new attorney after judgment; that if he had known the procedural requirements for a motion for new trial he would have asked for a new trial instead of an appeal; and that he did not 'intentionally intend' to waive his right for a new trial.

On June 4, 1965 the court made its order setting aside the judgment. It then rearraigned the defendant for judgment and entertained and granted the motion for new trial on the grounds set forth above. This appeal ensued. (See Pen.Code § 1238, subds. 3 and 5.)

The importance of review on a motion for new trial cannot be minimized. 'While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. (Citations.) It has been stated that a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial. (Citations.)' (People v. Robarge (1953) 41 Cal.2d 628, 633, 262 P.2d 14, 17; and see People v. Grake (1964) 227 Cal.App.2d 289, 292, 38 Cal.Rptr. 666; and People v. Jaramillo (1962) 208 Cal.App.2d 620, 626--627, 25 Cal.Rptr. 403.)

It is axiomatic, however, that a motion for new trial cannot be entertained or granted after judgment is entered. Penal Code section 1182 provides in part: 'The application for a new trial must be made and determined before judgment or the making of an order granting probation, whichever first occurs, * * *' (See People v. Martin (1963) 60 Cal.2d 615, 618, 35 Cal.Rptr. 769, 387 P.2d 585; People v. Risenhoover (1966) 240 A.C.A. 242, 243--244, 49 Cal.Rptr. 526; People v. Grake, supra, 227 Cal.App.2d 289, 292, 38 Cal.Rptr. 666; People v. Jaramillo, supra, 208 Cal.App.2d 620, 626, 25 Cal.Rptr. 403; People v. Smith (1961) 196 Cal.App.2d 854, 858, 17 Cal.Rptr. 330; People v. Maringer (1953) 115 Cal.App.2d 390, 392, 251 P.2d 999; People v. Krout (1950) 96 Cal.App.2d 215, 216, 214 P.2d 596; and People v. Fry (1934) 137 Cal.App. 525, 529, 31 P.2d 204; and cf. People v. Risenhoover, supra, 240 A.C.A. at pp. 245--246, 49 Cal.Rptr. 526 and People v. Hensel (1965) 233 Cal.App.2d 834, 837--838, 43 Cal.Rptr. 865.)

If the judgment is vacated or set aside, the motion for new trial may then be entertained. (See People v. Martin, supra, 60 Cal.2d 615, 618, 35 Cal.Rptr. 769, 387 P.2d 585; People v. Grake, supra, 227 Cal.App.2d 289, 292, 38 Cal.Rptr. 666; and People v. Jaramillo, supra, 208 Cal.App.2d 620, 627, 25 Cal.Rptr. 403.) The trial court has inherent power to modify or set aside its pronounced judgment if it has not been entered into the minutes of the court and if execution of its terms has not commenced. (People v. Thomas (1959) 52 Cal.2d 521, 529--530, 342 P.2d 889; People v. McAllister (1940) 15 Cal.2d 519, 525, 102 P.2d 1072; People v. Hensel, supra, 233 Cal.App.2d 834, 837--838, 43 Cal.Rptr. 865.) Consequently where the court after pronouncing, but before entry of judgment, is advised of the defendant's desire to present a motion for new trial, and expresses a willingness to entertain it, a subsequent refusal to hear the motion because it was tardy will be reversed because of the trial court's inadvertence in failing to set aside the judgment so it could properly entertain the motion. (People v. Grake, supra, 227 Cal.App.2d 289, 292--293, 38 Cal.Rptr. 666; People v. Jaramillo, supra, 208 Cal.App.2d 620, 627, 25 Cal.Rptr. 403; and see People v. Martin, supra, 60 Cal.2d 615, 618, 35 Cal.Rptr. 769, 387 P.2d 585.)

In the instant case the judgment was entered in the minutes on March 25, 1965. It was not until May 11th, some 47 days after the judgment, that the defendant sought relief. In fact by virtue of defendant's notice of appeal which was filed March 25th jurisdiction over the case passed to the appellate court and was not restored to the trial court until the appeal was abandoned on May 24th. (See People v. Hall (1952) 115 Cal.App.2d 144, 155, 251 P.2d 979.) The foregoing authorities do not authorize the action taken by the trial court in this case. The propriety of its action must depend on its power and authority to vacate the judgment.

People v. Nevarez (1962) 211 Cal.App.2d 347, 27...