PEOPLE v. LUMBLEY

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District Court of Appeal, Fourth District, California.

PEOPLE v. LUMBLEY.*

Cr. 338.

Decided: December 16, 1936

U. S. Webb, Atty. Gen., and John O. Palstine, Deputy Atty. Gen., for the People. Milburn G. Harvey, of Santa Ana, and Jack J. Rimel, of Los Angeles, for respondent.

This is a motion to dismiss an appeal from an order granting to the respondent a writ of error coram nobis, and also an appeal from an order modifying the original judgment. At the hearing the respondent also moved to dismiss the appeals on the ground that the appellant had not filed a brief within the time allowed and that no extension of time had been secured.

The respondent was charged with the felony of uttering a forged check and with three prior convictions of a felony sustained in the State of Arizona. He pleaded guilty to the offense charged in the information and also admitted the prior convictions. He was sentenced to confinement in the state prison for the term provided by law, the commitment being dated February 24, 1930. It appears that on January 14, 1933, the state prison board fixed his term of imprisonment at fourteen years; that on March 9, 1934, the prison board refixed his term at ten years; and that on June 23, 1935, the prison board advised him as follows: “Your case was reviewed and it was found necessary under the provisions of Penal Code section 644, as construed by a recent decision of the Supreme Court, to refix your term at Life. All former actions of the Board in your case fixing a definite term of imprisonment were annulled, vacated, and set aside.”

On October 2, 1935, the respondent filed in the superior court of Orange county a petition for a writ of error coram nobis based upon allegations that prior to his plea of guilty he had received from the Governor of the State of Arizona a full and unconditional pardon covering each of said prior convictions and that, through a mistake of fact, this had not been brought to the attention of the court or of its officers. The prayer was “that a Writ of Error Coram Nobis issue from this Court to the end that the decrees, orders and judgments of this Court relating to the charge of three prior convictions against petitioner contained in the information herein be set aside; that said cause in so far as it relates to the said charge of three prior convictions be reinstated on the docket and restored to the same condition in which it was before the petitioner's plea and the judgment or order thereon was entered; that petitioner be permitted to withdraw his said admissions of the prior convictions charged and to offer into evidence his said pardon herein mentioned and enter a denial of the said prior convictions and a motion to dismiss that portion of the charge in the information relating to prior convictions * * *.” After a hearing on October 15, 1936, the court ordered the writ to issue. On October 16, 1936, a writ of error coram nobis was issued ordering the original judgment vacated and set aside in so far as it adjudged the respondent guilty of the prior convictions charged in the information, vacating all orders, decrees, and commitment in so far as they recited or adjudged that the respondent was guilty of the prior convictions, granting the respondent the privilege of withdrawing his pleas and admissions with respect to the prior convictions and the right to enter a new plea and to prove any defense he might have with respect thereto, and ordering the respondent brought before the court for the purpose of permitting him to exercise the privileges granted him by the writ.

On October 23, 1936, the respondent was brought into court and being rearraigned on the charge of the three prior convictions denied that he had suffered them. The original pardon was introduced in evidence, oral testimony was taken, and the court made the following order: “I will make an Order that the judgment heretofore entered in this matter be amended by striking therefrom the finding that the defendant had suffered Three Prior Convictions. I will find that the defendant is guilty solely of having uttered a forged check and that at the time the original judgment was entered he was only guilty of having Uttered a Forged Check, and had not suffered Three Prior Convictions. I will order commitment to issue in accordance with the amended judgment.” Thereupon oral notice of appeal was given “from the Order just made by your Honor after judgment, modifying the original judgment, and also appeal from the Order granting the Writ of Error Coram Nobis.”

The respondent has moved to dismiss these appeals on the grounds that the appeal from the order granting the writ of error coram nobis was not properly taken in that no announcement of appeal was made in open court at the time the order was made and that no appeal lies from the order made on October 23, 1936, amending the original judgment and commitment by striking therefrom all reference to the three prior convictions.

If the order of October 15, 1936, granting the petition and ordering the writ to issue as prayed for, was an appealable order, no appeal therefrom was taken in accordance with the Code provision. Pen.Code, § 1240. While certain language used in People v. Superior Court, 4 Cal.(2d) 136, at page 151, 47 P.(2d) 724, supports the contention that the order here in question was not an appealable order, the point was only incidentally raised in that case and what was said thereon was not necessary to the decision. The effect of the order here in question was to vacate and set aside a portion of the original judgment. We are unable to see how it can be said that an order which has that effect is not “an order made after judgment, affecting the substantial rights of the people” within the meaning of section 1238 of the Penal Code, as amended by St.1935, p. 858. In many cases before the decision in People v. Superior Court, supra, and in at least four cases since that decision appeared [People v. Cabrera (Cal.Sup.) 59 P.(2d) 804; People v. Vernon, 9 Cal.App. (2d) 138, 49 P.(2d) 326; People v. Moore, 9 Cal.App.(2d) 251, 49 P. (2d) 615; People v. Lawyer, 11 Cal.App.(2d) 718, 54 P.(2d) 747], an appeal from an order passing upon a petition for a writ of error coram nobis has been heard and determined. In view of these many cases we think it must be taken as established that the order here in question was an appealable one and the appeal therefrom, not having been taken at the time and in the manner provided by statute, should be dismissed.

The order made on October 23, 1936, amending the judgment by striking therefrom the finding that the respondent had suffered three prior convictions and inserting the finding that at the time the original judgment was entered he had not suffered three prior convictions was, in effect, a judgment after a rehearing or new trial on the issue raised by the charge of the prior convictions and no appeal therefrom is provided by section 1238 of the Penal Code or by any other section with which we are familiar. That order not being one from which an appeal may be taken by the People the attempted appeal therefrom should be dismissed.

The motion is granted, and both appeals are dismissed.

BARNARD, Presiding Justice.

We concur: MARKS, J; JENNINGS, J.