PEOPLE v. McALLISTER

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District Court of Appeal, First District, Division 2, California.

PEOPLE v. McALLISTER.*

Cr. 2057

Decided: September 12, 1939

Klein & Clarke, of San Francisco, for appellant. Earl Warren, Atty. Gen., and F. Walter French and William F. Cleary, Deputy Attys. Gen., for the People.

Defendant appeals from an order denying his motion to correct the record.

Upon a prior application for writ of prohibition, appellant raised the same issues that he now raises. See McAllister v. Superior Court, 28 Cal.App.2d 160, 82 P.2d 462, 463. At that time we stated, concerning the record of the trial court and the facts presented by appellant:

“The minutes of said court show that petitioner was convicted of the crime of conspiracy to violate section 17 of an act known as the General Cemetery Act, St.1931, p. 2443, and that after he was duly arraigned for sentence on March 2, 1936, the trial court ordered that petitioner ‘pay a fine of $900.00, said fine to be paid at not less than $25.00 per month beginning on June 1st, 1936, and each and every month thereafter until said fine be satisfied; and in default of payment of said fine he be confined in the County Jail of the County of Alameda at the rate of one day's imprisonment for each $5.00 of said fine unsatisfied, imprisonment however not to exceed six (6) months'. No appeal was taken from said judgment.

“* It appears that on the day set for sentence, petitioner and two codefendants were before the court. Motion for new trial was denied and motions for reference to the probation officer were made by the other defendants and granted. During these proceedings, petitioner was arraigned for sentence and the reporter's transcript shows that the respondent court ordered that defendant be fined $900, payable in monthly instalments of not less than $25 per month commencing on June 1. It further appears that petitioner left the courtroom and that later on the same day, but before any judgment was entered, petitioner and his counsel returned to the courtroom, where the trial court stated that the alternative provision had been inadvertently omitted. It was then ordered that in the event of default, petitioner be confined in the county jail at the rate of one day for each $5 of said fine remaining unpaid, not exceeding a total period of six months.”

It was held, in denying the peremptory writ of prohibition, that since the alleged invalidity of the judgment did not appear upon the face of the judgment roll, the issue could not be raised by a proceeding in prohibition, such proceeding being a collateral attack. McAllister v. Superior Court, supra, 28 Cal.App.2d page 162, 82 P.2d page 464. Appellant thereupon sought by motion in the trial court to correct the record in order that it might show that he was sentenced to pay a fine at the morning session of the court and that the alternative provision for imprisonment in the event the fine was not paid was pronounced at the afternoon session of the court. It is his contention that, if the record be so corrected, it is at once apparent that the alternative provision for imprisonment is void, since the trial court, by pronouncing a valid sentence at the morning session of the court, had exhausted its jurisdiction, and was without authority to pronounce the alternative provision for imprisonment at the afternoon session of the court. In re Sullivan, 3 Cal.App. 193, 84 P. 781; In re Bouchard, 38 Cal.App. 441, 176 P. 692; In re Gottschalk, 47 Cal.App. 260, 190 P. 649; In re Humphrey, 64 Cal.App. 572, 222 P. 366; In re Garrity, 97 Cal.App. 372, 275 P. 480; Barry v. Superior Court, 91 Cal. 486, 27 P. 763; In re Claudette, 21 Cal.App.2d 688, 69 P.2d 1021.

In the leading case of In re Sullivan, supra, the trial court had on December 22, 1905, rendered judgment that the petitioner pay a fine and directed that if the fine was not paid, he be imprisoned in the state prison until the fine was satisfied at the rate of $2 per day. A commitment in the usual form was issued, and the petitioner committed to the custody of the proper officer. Five days later, and before he had been committed to the state prison, he was returned to court and, on motion of the district attorney, the judgment was vacated and a new judgment was entered identical with the first, except that the county jail was specified as the place of imprisonment. The court held that the latter judgment was invalid and ordered the prisoner discharged. In so holding, the court stated (3 Cal.App. page 195, 84 P. page 782): “The prevailing doctrine announced in other states is to the effect that a court has power to revise, correct, or vacate a sentence imposed upon a defendant during the term of the court, and before the original sentence has gone into operation, or any action is had under it. Commonwealth v. Weymouth [2 Allen, Mass., 144] 79 Am.Dec. 776, and cases cited in the notes. Granting the soundness of this rule, and conceding the power of the court to vacate, change, or revise a judgment within a reasonable time, and before it has been executed in whole or in part, we are still unable to uphold the judgment under which the petitioner is imprisoned.” The court then held that (3 Cal.App. page 197, 84 P. page 782): “The moment legal restraint was imposed as a means of enforcing the payment of the fine, that moment the execution of the judgment was commenced, and the power of the court was exhausted, and its jurisdiction to recall, annul, or change its judgment was at an end.”

It will be noted that in the Sullivan case, supra, the court, basing its concession upon the plenary power of a court over its judgment during a term of court, concedes that the court may vacate, change, or revise a judgment “within a reasonable time, and before it has been executed”. In Ex parte Monckros von Vetsera, 7 Cal.App. 136, 138. 93 P. 1036, the court said, basing its conclusion upon the same plenary power of the court, “Until the judgment had been entered in the minutes of the court, or had been in some authentic manner reduced to writing, as by the judge signing a written order, it must be held that the judgment lay in the breast of the judge, and that the court had plenary power thereover.” In that case, the court had on October 15, 1907, announced, after hearing in a habeas corpus proceeding, that the petitioner was illegally detained and “ordered that he be discharged from the custody of said warden”. No written order was signed and no minute entry made. Subsequently on October 17, 1907, the trial court signed a written order vacating and setting aside its order of October 15th. It was contended that the order of October 15th was a final judgment and that the court had, by making it, exhausted its jurisdiction to make any different order. This contention was held without merit upon the basis of the rule which we have quoted above. In People v. Thompson, 4 Cal. 238, the trial court had sentenced the defendant to be hanged on May 5th. Thereafter the defendant was again brought into court and the sentence was amended by shortening the time. The court held such amendment valid, saying (4 Cal. page 242): “As to the second [sentence], it was perfectly competent for the Court, at any time before final judgment signed, to amend its judgment, so that either sentence was good.”

While there is an apparent conflict between the rules announced in these three cases, i.e., two holding that the judgment may be altered, amended, or vacated at any time before the judgment is reduced to writing, either by minute entry or by formal order signed by the judge, and the other holding that this power may be exercised within a reasonable time and before the sentence has been executed, whichever view is taken, the trial court acted within its jurisdiction when it amended the sentence of appellant at the afternoon session of the court. For at the time the amendment was pronounced the original sentence had not been reduced to writing, either by a formal order or by minute entry, and no steps had been taken for the execution of the sentence. The record shows that the court acted promptly, and it cannot be said that the short interval of time intervening constituted an unreasonable delay.

We find nothing to the contrary in the other cases relied upon by appellant. As pointed out above in the Sullivan case, supra, the court attempted to modify the sentence after its execution had been commenced. In the Bouchard case, supra, the first sentence was void, and the second sentence was imposed nearly seven months after the petitioner had been received at San Quentin. It was held that the trial court had no jurisdiction to pronounce the second sentence, because the petitioner had served part of his term. In the Gottschalk case, supra, a modification of judgment was held void where the modification was made after the petitioner had been taken into custody under the original judgment. The petitioner in the Humphrey case, supra, was sentenced to pay a fine and to imprisonment in the state prison. It was held that the sentence of imprisonment was void and that the court was without jurisdiction to impose a valid sentence of imprisonment in the county jail. While it is not expressly so stated, it is apparent that petitioner was in custody under the void judgment. In Re Garrity, supra, the attempted modification occurred over a month after the original judgment had been rendered. While in that case the petitioner stipulated that the original sentence be set aside and the matter of sentences be reopened, it was properly held that the jurisdiction of the court having been exhausted by the first sentence, jurisdiction could not be conferred upon the court by stipulation. In the Barry case, supra, it appears that the petitioner had served the full sentence imposed by the first judgment, before any modification was attempted. The same factual situation is presented in the Claudette case, supra.

We conclude that the trial court had jurisdiction to amend its judgment at the time it undertook to do so. Therefore the clerk's minute entry is a correct entry of the judgment as pronounced, and the trial court properly denied the motion to correct the record.

Appellant argues, upon the basis of In re Bateman, 94 Cal.App. 639, 271 P. 757, that the court exhausted its jurisdiction at the time it orally pronounced judgment. An examination of that case discloses that it stands only for the principle that the judgment must be orally pronounced, and not for the principle that it is immediately effective upon oral pronouncement.

For the reasons above stated the order appealed from is affirmed.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.