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


Cr. 2865.

Decided: July 14, 1936

U. S. Webb, Atty. Gen., Frank Richards, Deputy Atty. Gen., and Buron Fitts, Dist. Atty., and Jere J. Sullivan, Deputy Dist. Atty., both of Los Angeles, for the People. Josiah Coombs, of Los Angeles, for respondent.

The people have appealed from an order made by the trial court setting aside its verdict and decision in a jury–waived trial and vacating all trial proceedings. The same order transferred the cause to another department of the court for repleading. This action, it is claimed, constituted, in effect, the granting of a new trial and was invalid: First, because no provision appears in the law empowering the court to grant a new trial in a criminal case tried without a jury; second, because the new trial order (or equivalent action by the court) was not predicated upon any of the grounds mentioned in the motion for a new trial or specified as adequate by the Penal Code, attention being called to the fact that no arguments in support of the motion or upon any of such grounds were ever presented to the court.

The defendant on January 22, 1936, had been found guilty by the court on two counts charging attempted murder, and a third count charging assault with a deadly weapon. His counsel immediately interposed an oral motion for a new trial “upon all the statutory grounds,” and prior to the date fixed for hearing that motion, the defendant in propria persona filed “Objections to Fatally Defective Verdict.” On the hearing date, defendant's trial counsel not being present, new counsel was ordered substituted and an order made continuing to a later date the hearing on the motion for new trial and objections to the verdict. Next day the newly appointed counsel filed a written motion for a new trial incorporating various grounds therefor, including “newly discovered evidence material to the defendant which with reasonable diligence could not have been discovered and produced at said trial.”

Before March 6th, the date finally fixed for hearing the objections and motion, the medical superintendent of the State Hospital for the Insane at Patton had made, and there was filed, his affidavit stating that defendant had been confined in the hospital as an insane patient in March, 1926, and had escaped from the institution in the following September. It does not appear that the motion for a new trial was heard on March 6th, or at any other time, or that the trial judge ever considered as a basis for his action any of the grounds relied upon, or that might have been urged if arguments had been presented. We find in the minutes of March 6th this entry: “Defendant declined to present or submit the motion for new trial and same was not argued or decided.”

Reference to the transcript shows that, on March 6th, counsel for defendant in a hurried session, held before giving way to another trial, presented his argument on the objections to the verdict, intending to follow that presentation with arguments upon the motion for the new trial. The proceedings, after the argument on the objections to the verdict closed, were as follows:

“Mr. Coombs: But I have not come yet to the motion for a new trial.

“The Court: Do you submit that along with the other motion?

“Mr. Coombs: No, I have not argued the motion for a new trial.

“The Court: It is my purpose to grant it, if you submit it.

“Mr. Coombs: I cannot submit the motion for a new trial with this motion. It is a special appearance. If I have to have it go over, I will ask that it go to next week.

“The Court: What do you want this Court to do?

“Mr. Coombs: I want you to rule on the present interposed motion.

“The Court: What is the present motion?

“Mr. Coombs: An objection to the verdict. When you rule on that––there is a special appearance for that purpose––when you rule on that, I am ready to go to the motion based on the record of the case, whether the defendant is entitled to a new trial on the record; I have not discussed the record on the motion for new trial; I believe there are a series of contentions to be raised, to the trial of the defendant, which should be given consideration by your Honor. You know the issue, the contentions. I will raise them all on the record.

“The Court: We will just obviate all that; the so–called objection to the verdict of the Court is sustained; the proceedings at the trial are vacated, and the defendant is remanded to the Master Calendar Department for re–pleading.

“Mr. Coombs: Very well, your Honor.

“The Court: I will let you all thresh out your difficulties there, and let him re–plead.

“Mr. Coombs: I will give the matter due attention on the trial.” (Italics ours.)

It is apparent from the foregoing that the minute entry of March 6th, instead of saying, “Defendant declined to present or submit the motion for new trial and same was not argued or decided,” should have read, “Defendant declined to submit without argument motion for new trial and no opportunity being given to present arguments, the motion was not decided.” It is pertinent to say here that section 1202, Penal Code, provides that, “If the court shall refuse to hear a defendant's motion for a new trial or when made shall neglect to determine such motion within the time fixed for pronouncing judgment,” or within the permissible extensions of that time; or if judgment is not pronounced within the five–day period fixed by section 1191 of the Penal Code, or within the extended periods therein mentioned, “then the defendant shall be entitled to a new trial.”

The reason for the court's action in sustaining the objections to the verdict appears from the following conversations between the deputy district attorney and the court:

“Mr. Crail: Do I understand you are granting a motion for a new trial?

“The Court: Counsel refuses to submit it. (‘Without argument’, of course, was intended.)

“Mr. Crail: What order, then, is your Honor making at the present time?

“The Court: I vacated the verdict entered by the Court.

“Mr. Crail: On what motion?

“The Court: On his objections to the entry of the verdict, and I am doing it because no legal plea had been interposed at the time of the trial, upon the theory that the first plea of not guilty had been superseded by the order to test his sanity, and his sanity having been tested, and that issue having been disposed of, he should have been rearraigned.”

The reason also appears from the remarks of the court directed to defendant's counsel: “* * * there is some considerable question here legally as to whether or not the proper procedure was, after the restoration of sanity judgment, to replead the defendant; that was not done. You are claiming that vitiated subsequent proceedings. I am ruling with you.”

To clarify the situation touched upon in these passages, it is necessary to refer to earlier proceedings had in this case. When defendant was arraigned he entered a plea of “not guilty” to each of the counts contained in the information and the case was then set for trial. Shortly before the trial date, an oral motion to change the plea from “not guilty” to “not guilty and not guilty by reason of insanity” was made, and upon an affidavit in support thereof being filed, the criminal calendar judge, Hon. Ruben Schmidt, declared his doubt as to the present sanity of the defendant, appointed three alienists to examine him under section 1871, Code of Civil Procedure, and continued hearing of “the motion to enter an additional plea * * * until the determination as to the present sanity.” A jury trial was had before Judge Aggeler upon the sanity question shortly thereafter in which, upon the testimony of the alienists, defendant was found sane. Defendant was then brought before Judge Schmidt again, at which time the following proceedings were had:

“Mr. Colegrove (Deputy Dist. Attny.): Do I understand that the application to withdraw the original plea of not guilty by reason of insanity––

“Mr. Perky (Defendant's counsel): If there is one, he wants to withdraw it. His sanity has been inquired into and found to be sane. He is a lawyer.

“The Court: There was an additional plea and that matter was continued to determine his present sanity. Now, the present sanity issue has been tried and determined. Do you still desire to make a motion to enter the other plea, or do you withdraw it?

“Mr. Perky: Withdraw it.”

The case was then set for trial a month later before another judge, Hon. Henry M. Willis, another deputy district attorney; Mr. Crail, appearing for the people. That he was not altogether familiar with what had transpired in other departments of the court appears from his comment at the opening of the trial: “There is no plea of not guilty by reason of insanity in this case at all and the defendant's mental condition is not material. He sought permission to interpose such a plea before Judge Schmidt, which application was denied after a hearing on present insanity,––was denied after Judge Schmidt had heard the testimony of five alienists.” As a matter of fact, as we have seen, the jury in Judge Aggeler's court, and not Judge Schmidt, heard the testimony of the alienists and the application to enter the additional plea was withdrawn, not denied. That Judge Willis also was at some disadvantage, not being familiar with occurrences in this case outside his own department, is evident from his comment, when considering the objections to the verdict: “Now all of that could have been introduced at the proper time had the plea of not guilty by reason of insanity been entered, but the defendant has refused and persistently refuses to enter that plea,” whereas, the defendant had actually applied for permission to enter such a plea combined with the plea of not guilty. All this goes to show that, possibly because proceedings in this case involving pleas or insanity issues were had in three different departments, there was no very clear understanding as to the status of the original plea of not guilty, when Judge Willis undertook to consider the objections to the verdict urged by new counsel for defendant, who incidentally had not been connected with the case in any of its preliminary stages, or in fact, until after the trial. Defendant in his objections to the verdict took the position that when the court ordered his sanity to be inquired into, he also ordered withdrawn, pending the result of that inquiry, the plea of not guilty that had been entered; that said plea accordingly was withdrawn and no other plea ever thereafter entered. Nothing appears in the record to sustain this claim; on the contrary, we believe the original plea stood as entered and the trial before Judge Willis was had upon that plea, the intervening proceedings having to do solely with the proposed insanity plea. However, we have had an opportunity to study the record of all these intervening proceedings, not available, at least for close examination, to Judge Willis at the time he vacated all prior trial proceedings and ordered the cause to be called again for repleading. We have already quoted the reason assigned, “upon the theory that the first plea of not guilty has been superseded by the order to test his sanity.” But, granting that the learned trial judge may have acted under a mistaken apprehension of what had transpired before the case came to him, we are still confronted with the fact that this defendant never has had his motion for a new trial passed upon. We think it may be said fairly that the court, for reasons that appeared to him sufficient to justify his ignoring the motion, refused to hear it; at least, he neglected to determine it or to pronounce judgment within the prescribed time. In such a situation section 1202 of the Penal Code becomes operative entitling a defendant to a new trial.

The people contend that by the action of the court he has been granted a new trial, but on an invalid ground. Our opinion is that, at the close of the proceedings of March 6th, he became entitled to a new trial upon a different but sufficient ground (Pen. Code, § 1181, as amended by St.1933, p. 1341, and § 1202), and since “these provisions have been construed to be mandatory in effect and designed to produce speedy determination of criminal proceedings in the trial court” (People v. Gilbreth, 33 Cal.App. 23, 24, 164 P. 18, 19), we feel that no injustice is done when we affirm the order of the trial court. Under the reasoning of cases cited in 2 California Jurisprudence, 809, an order which is right upon any theory must be sustained.

From the foregoing it will be seen that we do not accept the view so strongly urged by the people, that a defendant may not move for a new trial in a felony case tried by a court without a jury. We do not believe that the waiver by defendant of his right to a jury trial goes to that extent.

Order affirmed, and the trial court directed to arraign defendant for plea.

DESMOND, Justice pro tem.

We concur: YORK, Acting P. J.; DORAN, J.

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