People v. Thomas

• Citation: 342 P.2d 889,52 Cal.2d 521
• Decision Date: 24 July 1959
• Docket Number: Cr. 6455
• Court: California Supreme Court
• Parties: PEOPLE of State of California, Respondent, v. Robert THOMAS, Appellant.

Page 889

342 P.2d 889

52 Cal.2d 521

PEOPLE of State of California, Respondent, v. Robert THOMAS, Appellant.

Cr. 6455.

Supreme Court of California, In Bank.

July 24, 1959.

Spiegel, Turner & Wolfson and Gerald G. Wolfson, Santa Monica, for appellant.

Edmund G. Brown and Stanley Mosk, Attys. Gen., Elizabeth Miller and David B. Allen, Deputy Attys. Gen., for respondent.

SCHAUER, Justice.

Defendant appeals from an order denying his motion (1) to vacate a judgment, rendered in the afternoon of April 7, 1958, which sentences him to state prison and (2) to reinstate a county jail sentence announced in the morning and 'rescinded' in the afternoon of that day. He contends that the judgment is void under the italicized portion of the following rule stated in People v. McAllister (1940), 15 Cal.2d 519, 526(2), 102 P.2d 1072 (the bracketed numbers are inserted for convenience of subsequent reference): '(1) If the sentence has been entered in the minutes of the court, or (2) if the defendant has begun serving said sentence or (3) has been restrained by the sentence imposed, then the court is without jurisdiction to vacate, add to, or in any manner modify the sentence originally pronounced. On the other hand, if the sentence pronounced has not been entered by the clerk in his minutes, and no legal restraint has been imposed upon the defendant by reason of said sentence, then it is proper for the court to change the sentence originally pronounced.' (Italics added.)

The People urge that the order denying defendant's motion is not appealable because his contention could have been raised by appeal from the judgment of conviction. Also they urge that clause (2) of the rule stated in the McAllister case is not applicable to the facts of this case, and that literal application of clause (3) would give defendant the undeserved benefit of a technicality which did not prejudice him.

For the reasons hereinafter stated we have concluded that the order is appealable. Consideration of the merits of the appeal leads to the further conclusion that the superior court had power to set aside the jail sentence and impose the prison sentence and that it did not err in the exercise of such power.

Defendant was charged with possession of heroin in violation of section 11500 of the Health and Safety Code and with having suffered a previous conviction of violating the same section and having served a state prison term therefor. He pleaded not guilty and he and counsel for both parties waived a jury trial. Defendant was tried in a Santa Monica department of the Los Angeles county superior court. On March 17, 1958, the court found him guilty of the substantive offense, received in evidence a certified copy of the record of his prior conviction and imprisonment, and continued the question of disposition of the allegation of such prior conviction to April 7, 1958, the date set for hearing on defendant's application for probation. Defendant was remanded without bail and confined in the Los Angeles county main jail. (This jail, and the main office of the county clerk where judgments of all Los Angeles superior courts are entered, are in the Civic Center, City of Los Angeles. As will appear, the facts of geographical distance between the sentencing court and courtroom clerk on the one hand and the main jail and clerk's office on the other hand have practical relation, in circumstances such as those here, to the determination of the time when the court loses jurisdiction to change a valid sentence.)

On the morning of April 7 a deputy sheriff brought defendant from the Los Angeles jail to the Santa Monica court. Without mention of the previous conviction (and therefore without determination of the issue of fact which had been reserved for decision at this time) the court denied probation and sentenced defendant to six months in jail. A notation of this sentence was made by the clerk in what he termed his 'rough notes' but such sentence was not entered in the minutes. A deputy clerk who acted as the courtroom clerk's assistant prepared a remanding order, directed to the county sheriff, which states: 'The court having remanded the above named defendant, you are now authorized to hold said defendant pending such further disposition as the court may order'; 'No Bail'; '6 Months County Jail.' The deputy sheriff began the transportation of defendant back to the jail. We assume that the remanding order went with them.

The courtroom clerk testified, at the hearing on the motion to vacate, that '(O)n April 7th, which is Monday, our criminal calendar day, we normally have fifty, sixty, or even more cases, and in the press of the morning, no one * * * caught the fact that the prior had no been disposed of (until after the deputy sheriff had left with the defendant, but) * * * As I was about to prepare the minutes from my rough notes to be transmitted to the Criminal Division of the County Clerk's Office (in the Civic Center, City of Los Angeles), I noticed that a prior had not been disposed of on Robert Thomas.' The clerk called the omission to the attention of the prosecuting attorney, defendant's counsel, and the judge, all of whom were still in the courtroom or chambers, and telephoned the sheriff's office and asked that defendant be returned to the Santa Monica court as soon as he arrived at the jail.

Defendant reached the jail at 3:15 p. m. and was checked out for return to court at 3:35 p. m. At 3:39 p. m., after defendnat had left the jail, the above described remanding order was received at the sheriff's booking office of the jail. Thus defendant, so far as the sheriff's records disclose, was at no time held in the jail in service of the jail sentence which had been pronounced at the mroning session of the court.

At 4:50 p. m. defendant, with counsel, again appeared in the Santa Monica court. The court stated, 'This morning * * *, through the buysness of the calendar, I overlooked the fact that this defendant had a prior narcotics conviction.' (Inferentially, the judge meant that he had overlooked disposing of the allegation and issue as to the prior conviction.) Defendant admitted that he had suffered the prior conviction (sale of marijuana) and that he was 'presently on parole' therefor. The court announced, 'The sentence this morning is rescinded' and sentenced defendant to prison, with the finding that the alleged prior narcotics conviction is true. ¹ Judgment reciting this finding and imposing the prison sentence was entered in the minutes. Two weeks after the time for appeal from the judgment had passed, defendant, through new counsel, noticed the motion above described and, as stated, he now appeals from the order denying such motion.

To the statutory rule that 'An appeal may be taken by the defendant * * * from any order made after judgment, affecting the substantial rights of the party' (Pen.Code, § 1237, subd. 3), there is a well established qualification upon which the People rely: Ordinarily no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment. (People v. Bowles (1933), 135 Cal.App. 514, 516(3), 27 P.2d 411; People v. Zolotoff (1941) 48 Cal.App.2d 360, 363(1), 119 P.2d 745; cases announcing this qualification and exceptions to it are collected in 7B McKinney's New Cal.Dig. (1958), Crim.Law, § 1053(2).) In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limited within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. (People v. Carkeek (1939), 35 Cal.App.2d 499, 505-506, 96 P.2d 132.) The considerations are the same whether the matters sought to be presented by motion to vacate actually were presented to the trial court prior to judgment of conviction, or whether such matters should have been but were not so presented. (See People v. Reid (1924), 195 Cal. 249, 256, 260(7), 232 P. 457, 36 A.L.R. 1435; People v. Shorts (1948), 32 Cal.2d 502, 514, 515, 197 P.2d 330. ²)

Defendant relies upon People v. Walker (1901), 132 Cal. 137, 141-142, 64 P. 133, and People v. Miller (1934), 140 Cal.App. 241, 242-243, 35 P.2d 229, which allowed the remedy of motion to correct the minutes and vacate the judgment of conviction, and appeal from the ensuing order of denial, because the appellate courts concluded that, in the circumstances there present, an appeal from the judgment would have afforded no relief for it would not have brought up a record showing the error of which defendant complained. Here, defendant asserts, the question whether tghe trial court had jurisdiction to vacate the jail sentence and impose the prison sentence could not have been reviewed on appeal from the judgment imposing the latter sentence because the record on such an appeal would not have disclosed the fact, essential to his presentation of such question, that after pronouncement of the jail sentence and before pronouncement of the prison sentence defendant had actually been in jail. This fact, however, was known to all concerned at the time the jail sentence was 'rescinded.' Defendant could have made the fact of record and presented his arguments concerning its effect to the trial court before it pronounced the prison sentence, but he did not do so. Thus the claimed inadequacy of the remedy of appeal was not due to any deficiency in the remedy itself but rather resulted from defendant's failure to make a sufficient record in the trial court.

The remedy here sought is available, however, because the basis of defendant's attack on the judgment is that it is void. Fundamental jurisdictional defects, like constitutional defects, do not become irremediable when a judgment of conviction becomes final without appeal (or even after affirmance...