People v. Rogers
| Decision Date | 28 July 1967 |
| Docket Number | Cr. 12330 |
| Citation | 61 Cal.Rptr. 48,252 Cal.App.2d 1015 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond ROGERS, Defendant and Appellant. |
Velma E. Williams, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard H. Cooper, Deputy Atty. Gen., for plaintiff and respondent.
The defendant was charged by information number 284070 filed by the District Attorney of Los Angeles County on January 27, 1964, with two counts of burglary alleged to have been committed on December 29, 1963, and on January 7, 1964, respectively. He was also charged with having suffered three prior convictions of felony, two for burglary and one for robbery and that he had served a term of imprisonment upon each of such prior convictions. A motion to set the information aside pursuant to the provisions of section 995 of the Penal Code was denied, whereupon he entered pleas of not guilty and not guilty by reason of insanity, and denied the truth of the allegations of prior convictions of felony.
On April 20, 1964, he withdrew his pleas formerly made and entered a plea of guilty to burglary of the second degree as to each count in the information, and waived his right to trial by jury as to the priors. A probation report was ordered, and time for the pronouncement of judgment was waived. On June 4, 1964, proceedings were suspended and the defendant was placed on probation for the period of five years on the condition, amongst others, that he spend the first six months of his probationary period in the county jail. No finding was made upon the prior convictions.
The defendant was subsequently charged by information number 296364, filed by the District Attorney of Los Angeles County, with burglary in two counts, alleged to have been committed on October 28 and 29, 1964, respectively. On January 7, 1965, the defendant was adjudged guilty as to each count and the degree was fixed as second degree. Four prior felony convictions alleged in the information were found to be true. A probation report was ordered and a hearing on the application was set for February 3, 1965. The report of the probation officer filed in connection with the hearing bears the superior court file numbers 296364 and 284070. The report concludes with the recommendations that in case number 284070, probation be revoked and sentence imposed, and in case number 296364 probation be denied. The record discloses that the trial judge read and considered this report. The reporter's transcript of the proceedings relating to case number 296364 discloses that probation was denied and the defendant was sentenced to state prison on both counts. The sentence imposed under count two of the information was ordered to run concurrently with the sentence imposed under count one thereof. The reporter's transcript as well as the clerk's minutes disclose that the matter of the defendant's violation of probation, in case number 284070 was on the calendar for hearing on February 3, 1965, in the same court room and before the same judge who was to hear the application for probation and who was to pass judgment and sentence in case number 296364. On this occasion the defendant was represented in both proceedings by deputy public defendant R. Mainer. The trial judge was aware from the record in case number 296364 that the defendant, while on probation in case number 284070, had committed two burglaries; had been convicted thereof, and had been sentenced to state prison thereon. The record in the trial court at this point as to the proceedings had in relation to case number 284070 is not consistent. The clerk's minutes disclose that the trial judge found the defendant to be in violation of the terms of his probation, ordered probation revoked, and sentenced the defendant to state prison, the sentences to run concurrently with the sentences pronounced in case number 296364. The trial judge failed, however, to specify in the judgment in case number 284070 whether the sentences should run concurrently or consecutively with each other. Assuming this to be a valid judgment, in the absence of such specification, the sentences on counts one and two are made to run concurrently with each other by operation of law. (Pen.Code. § 669.) On the other hand, the reporter's transcript of the proceedings on February 3, 1965, discloses that no order revoking probation was made.
On May 16, 1965, the defendant, then in state prison, addressed a letter to the trial judge wherein, amongst other things, he directed attention to the error stating: 'that no formal revocation of probation order was ever made, formulated, or issued, in the above entitled cause.
'Will you please advise me if the court wishes to issue Writ of Error Coram Vobis in the above cause in order that the Record can be corrected, or what action I should take to achieve that end.'
A response was made to this letter by the county clerk under date of June 1, 1965, wherein he told the defendant in substance that the records of his commitment appeared to be correct. On January 19, 1966, the court made an order directed to the sheriff to transport the defendant from state prison for his appearance on February 2, 1966, for a hearing on his 'Writ of Error Coram Nobis and/or Writ of Error Coram Vobis, and motion to vacate judgment.' On February 2, 1966, the hearing was continued to February 9, 1966. The points urged at the hearing were that the court had erred in not advising the defendant at the time of the proceedings had on February 3, 1965, that he had a right to a formal hearing with counsel, on the charge of violation of probation; that the court failed to hold such a hearing, and that the court erred in not pronouncing a formal order revoking probation before pronouncing judgment and sentence. The trial judge conceded that he had committed error in the proceedings of February 3, 1965, although it is not clear whether such concession related to all of the above claims of error or only to some of them. On February 9, 1966, the trial court granted the motion to set aside the judgment and thereupon ordered the judgment and sentence pronounced on February 3, 1965, in case number 284070, vacated in order that the defendant could be heard on the question of his having violated the terms of his probation. Counsel was appointed to represent the defendant on such hearing; a supplemental probation report was ordered, and the hearing thereon was set for February 21, 1966.
On February 21, 1966, the defendant, through his counsel, moved to dismiss the information upon the grounds that the court had lost jurisdiction to proceed in the matter by reason of the provisions of section 1203.2a of the Penal Code. 1 The reasoning advanced in support of this motion appears to be that the trial court had actual notice of the judgment and sentence pronounced in case number 296364, and that it had failed to pronounce judgment and sentence in case number 284070 within 30 days after the defendant had, in the manner prescribed, requested imposition of sentence therein. This motion was denied; the defendant was found to be in violation of the terms of probation; probation was revoked, and the defendant was again sentenced to state prison, the 'sentences as to counts 1 and 2 are ordered to run concurrently with sentences in case No. 296364, counts 1 and 2.' Again, no order was made as to whether the sentences on counts one and two of information number 284070 should run concurrently or consecutively with each other. Under these circumstances such sentences are made to run concurrently with each other by operation of law. (Pen.Code § 669; see People v. Chung, 207 Cal.App.2d 660, 24 Cal.Rptr. 637.) The appeal is from this judgment.
The principal contention of the defendant here is that the trial court had lost jurisdiction to pronounce judgment and sentence in case number 284070 because the court had not complied with the provisions of section 1203.2a of the Penal Code. The Attorney General urges that the appeal should be dismissed because the defendant has not complied with the provisions of section 1237.5 of the Penal Code. 2
The defendant does not attack the validity of his guilty plea but asserts errors which were committed in proceedings held subsequent thereto. U...
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