People v. Pineda

• Decision Date: 11 August 1967
• Docket Number: Cr. 5832
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest Vivallava PINEDA, Defendant and Respondent.

Page 144

62 Cal.Rptr. 144

253 Cal.App.2d 443

PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest Vivallava PINEDA, Defendant and Respondent.

Cr. 5832.

Court of Appeal, First District, Division 1, California.

Aug. 11, 1967.

Hearing Denied Oct. 5, 1967.

R. Donald Chapman, Public Defender, Sheldon Portman, Chief Assistant, County of Santa Clara, San Jose, for appellant.

Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, George R. Nock, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant, having been resentenced following one appeal ((1965) 238 Cal.App.2d 466, 47 Cal.Rptr. 879), has again appealed from a judgment sentencing him to state prison for possession of a narcotic in violation of section 11500 of the Health and Safety Code, with two prior convictions for violation of the provisions of the same section, one in 1951, a misdemeanor, and the other, in 1959, a felony.

In the prior appeal the defendant contended that the judge coerced the jury, and that there was error in the sentencing. There was no challenge to the sufficiency of the evidence to support the conviction. (238 Cal.App.2d at p. 467, 47 Cal.Rptr. 879.) The reviewing court resolved the first issue against the defendant (id., pp. 468--470, 47 Cal.Rptr. 879). On the second issue it found there had been an error in the sentencing because both the prior offenses had been charged as, had been admitted to be, and were referred to by the judge as, felonies, although in fact the earlier, 1951, violation was a misdemeanor. (It was so designated in the abstract of judgment.) Further error was found in treating defendant's application for lesser punishment as a hopeless motion for probation for which he was ineligible (Health & Saf. Code, § 11715.6), rather than as a plea for possible commitment for rehabilitation under the provisions then found in Penal Code sections 6399--6555 (now Welf. & Inst. Code, §§ 3000--3305). (238 Cal.App.2d pp. 470--473, 47 Cal.Rptr. 879.)

The court acknowledged that a misdemeanor 'felony offense' (Health & Saf.Code, § 11504) had the same consequences on the minimum term to be served as a true felony, but concluded 'Where, as here, the penalty for the crime is extremely harsh and the program of rehabilitation strongly supported by public policy, and we are not assured that the sentencing judge was enabled to evaluate properly the possibility of rehabilitation for this appellant, we deem it proper to remand the case for sentencing.' It adjudged: 'The judgment, insofar as it decrees the sentence as entered, is reversed and the cause is remanded for further proceedings in conformity with this opinion.' (Id., p. 473, 47 Cal.Rptr. p. 884.)

After the remittitur was filed in the trial court, the district attorney advised the defendant and the court that, after investigating the record, he would not assent to a waiver of defendant's ineligibility for the rehabilitation program. (See Welf. & Inst. Code, §§ 3051 and 3052; former Pen. Code, §§ 6451 and 6452; and People v. Pineda, supra, 238 Cal.App.2d at p. 472, 47 Cal.Rptr. 879.) Defendant interposed a motion for a new trial on the following grounds: '1. That new evidence has been discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial; 2. That the verdict in the within case was contrary to the law and the evidence; 3. That the Court has erred in the decision of a question of law arising during the course of the trial in that evidence of narcotics was admitted after being seized pursuant to an invalid search warrant.'

The court refused to grant defendant any relief on the ground that the state of the proceedings was such that it did not have authority to entertain a motion for new trial. ¹ The defendant, when then arraigned for sentence, moved the court for permission to withdraw his previous admission of the 1951 offense on the grounds that he had no counsel in those proceedings and had not effectively waived his right to counsel. The court ultimately found that defendant was offered counsel and intelligently and understandingly waived counsel in the 1951 proceedings. Thereafter, following requested delays pending defendant's unsuccessful proceedings to obtain a writ of mandamus (see fn. 1), the judgment now appealed from was entered.

Defendant contends that the trial court erred in refusing to consider his motion for a new trial and that as a result of that error a new trial is required by law. He also asserts that the record, as augmented by the proceedings in connection with the motion for new trial, demonstrates that his conviction is based upon unlawfully obtained evidence procured in the execution of an invalid search warrant. He contends that he is entitled to assert this objection, despite failure to raise it at the trial or on his prior appeal, because it is dependent on restrictive principles applicable to search warrants which were not fully enunciated until his first appeal was determined. Alternatively, he urges that if an objection should have been made, that he was deprived of the effective aid of counsel. Finally he contends that the court erred in finding that he intelligently and understandingly waived his right to counsel in the 1951 proceedings, and in refusing to strike that prior conviction.

For the reasons set forth, it is concluded that the trial court properly refused to entertain defendant's motion for a new trial; that his conviction was not at the time of the second sentencing, nor is it now, open to collateral attack on the ground of an unforeseeable change in substantive or procedural law; that he was not deprived of the effective aid of counsel; that the trial court properly entertained his objections to his first prior conviction; and that the trial court's finding, on conflicting evidence, of the validity of that conviction should be sustained. The judgment must be affirmed.

The facts in reference to the commission of the offense itself are set forth in People v. Pineda, supra, (238 Cal.App.2d at pp. 467--468, 47 Cal.Rptr. 879), and need not be repeated here. Such facts as bear upon defendant's present contentions are set forth below.

The Motion for New Trial

'It is axiomatic * * * 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, * * *' (Citations.)' (People v. Hales (1966) 244 Cal.App.2d 507, 511, 53 Cal.Rptr. 161, 165; and, in addition to cases cited therein, see People v. Coffman (1951) 105 Cal.App.2d 164, 169, 233 P.2d 117; and People v. Egan (1933) 135 Cal.App. 561, 562, 27 P.2d 765.)

The prosecution contends that the time within which to make a motion for a new trial expired with the entry of the original judgment. This view is supported by statements that unless the motion is made in the manner and within the time prescribed by statute the right to make it is waived. (See People v. Grake (1964) 227 Cal.App.2d 289, 292, 38 Cal.Rptr. 666; People v. Jaramillo (1962) 208 Cal.App.2d 620, 626, 25 Cal.Rptr. 403; People v. Fry (1934) 137 Cal.App. 525, 529, 31 P.2d 204.) The right to have the trial judge pass on the weight of the evidence is a valuable right (see People v. Sarazzawski (1945) 27 Cal.2d 7, 15--16, 161 P.2d 934), but it may be waived by failure to assert it in timely fashion (People v. Hales, supra, 244 Cal.App.2d 507, 510--511, 53 Cal.Rptr. 161).

On the other hand, the following rule is equally well established. 'If the judgment is vacated or set aside, the motion for new trial may then be entertained. (Citations.)' (People v. Hales, supra, 244 Cal.App.2d 507, 511, 53 Cal.Rptr. 161, 165; and see cases cited.) Comparison of the foregoing principles suggests examination of the effect of the decision on the first appeal. The language used in Pineda to remand (238 Cal.App.2d at p. [253 Cal.App.2d 450] 473, 47 Cal.Rptr. 879) is identical with that found in People v. Ortiz (1964) 61 Cal.2d 249, 37 Cal.Rptr. 891, 391 P.2d 163, which the Pineda court cited. In Ortiz the court clearly set forth its intention in ordering a limited reversal. The opinion states: 'Accordingly, to give proper effect to both the express language and the underlying purpose of the narcotic addict commitment statutes, the cause must be remanded not for a new trial on the issue of guilt but in order that the court may have the opportunity to exercise the discretion vested in it by section 6451. (See People v. Wallace (1963) supra, 59 Cal.2d 548, 553(3), 30 Cal.Rptr. 449, 381 P.2d 185.)

'The judgment, insofar as it decrees the sentence as entered, is reversed and the cause is remanded for further proceedings in conformity with this opinion.' (61 Cal.2d at pp. 255--256, 37 Cal.Rptr. at p. 895, 391 P.2d at p. 167.) (See for examples of limited reversals to consider a grant of probation: People v. Wade (1959) 53 Cal.2d 322, 336--339, 1 Cal.Rptr. 683, 348 P.2d 116; People v. Southack (1952) 39 Cal.2d 578, 591--592, 248 P.2d 12; and People v. Jones (1927) 87 Cal.App. 482, 493--500, 262 P. 361; and for consideration of sexual psychopath proceedings: People v. Barnett (1946) 27 Cal.2d 649, 658--659, 166 P.2d 4; and People v. Raquel (1954) 125 Cal.App.2d 384, 386, 270 P.2d 528.)

Viewed in the light of decisions decreeing limited reversals (see cases last cited) it is clear that the question of guilt was finally determined on the prior appeal, and that there was no intent to vacate the judgment to permit further inquiry regarding that issue. (Cf. People v. Moore (1960) 53 Cal.2d 451, 454, 2 Cal.Rptr. 6, 348 P.2d 584.) The matter is controlled by the considerations which evoked the following passage in People v. Oppenheimer (1965) 236 Cal.App.2d 863 at page 866, 46 Cal.Rptr. 476, 478, cert. den. (1966...