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

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert THOMAS, Defendant and Appellant.*

Cr. 6355.

Decided: January 26, 1959

Spiegel, Turner & Wolfson, Santa Monica, for appellant. Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

Defendant was charged with violating Health and Safety Code section 11500 (possession of heroin). It was also alleged that he had suffered a prior conviction for violation of this same code section and that he had served a term of imprisonment therefor in the state prison. At the trial in the Santa Monica branch of the superior court, defendant was found guilty of possession and evidence was received with respect to his alleged prior conviction, but determination of that question was continued until the hearing on defendant's application for probation and sentence, which was set for April 7, 1958. In the meantime defendant was in the county jail. On the morning of April 7th defendant was transported to the Santa Monica court from the county jail in the custody of a deputy sheriff. Defendant's case was heard shortly after 10:00 o'clock. Probation was denied. He was sentenced to six months in the county jail, and remanded to custody. However, no mention was made of the alleged prior conviction. The clerk made notes of the judge's disposition of defendant's case but did not then make a formal entry thereof in the minutes. After defendant and the deputy sheriff who had him in custody left the courtroom the clerk discovered that the judge had failed to dispose of the alleged prior conviction. The clerk called the matter to the attention of the deputy district attorney and the deputy public defender who represented defendant, and the three of them held a conference with the judge in his chambers with respect to this matter. As a result, the judge directed the clerk to have the defendant brought back into court that afternoon. The clerk telephoned the sheriff's office in Los Angeles before going to lunch that the defendant was to be returned immediately to the superior court in Santa Monica. Defendant was returned to the jail at 3:15 p. m.; he was checked out for return to the Santa Monica court at 3:35. The order remanding defendant to the county jail for a period of six months was stamped as having been received there at 3:39 p. m. When defendant was notified that he must return immediately to the Santa Monica court ‘[h]e was in the process of receiving his cell clothes.’ Defendant and his attorney appeared again in the Santa Monica court at 4:50 that afternoon. The judge explained that in view of the heavy calendar that morning he had inadvertently overlooked the alleged prior conviction. No objection was raised by defendant's counsel to this hearing, during the course of which defendant admitted the prior conviction (sale of Marijuana) and that he was presently on parole. The judge thereupon vacated the previous sentence of six months in the county jail and imposed a sentence in the state prison.

Soon thereafter new counsel for defendant filed a motion to vacate the last judgment and to reinstate the county jail sentence. An affidavit of defendant's aunt was filed in support of the motion to the effect that upon the jail sentence being pronounced the deputy sheriff took defendant out of the courtoom. At the hearing on the motion to vacate the judgment there was testimony of the court clerk and a deputy sheriff covering the above procedural matters. Defendant's motion was denied. He has appealed from that order.

Defendant contends that the second judgment is void on the ground that the court was without jurisdiction to vacate the sentence originally pronounced. Defendant's position is well taken.

The rule here applicable is stated in People v. McAllister, 15 Cal.2d 519, at pages 526–527, 102 P.2d 1072, at page 1075, as follows: ‘If the sentence has been entered in the minutes of the court, or if the defendant has begun serving said sentence or has been restrained by the sentence imposed, them 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.’

When defendant in the instant case left the courtroom in Santa Monica in the forenoon he was in the custody of a deputy sheriff pursuant to the county jail sentence that had been pronounced. When he was returned to the county jail he was handed his prison garb in furtherance of the execution of that sentence. There can be no doubt that ‘legal restraint’ had been imposed upon him ‘by reason of said sentence.’ It therefore follows that the instant case comes squarely within the latter portion of the rule quoted from People v. McAllister, supra. Hence, under the authority of that case, the court was thereafter ‘without jurisdiction to vacate * * * the sentence originally pronounced.’ See also People v. Reimringer, 116 Cal.App.2d 332, 343, 253 P.2d 756; People v. Ysabel, 28 Cal.App.2d 259, 261, 82 P.2d 476; In re Daniels, 119 Cal.App. 350, 6 P.2d 549. From this it follows that the sentence in the afternoon to the state prison was void. People v. McAllister, supra.

The People suggest that defendant's appeal should be dismissed upon the theory that the question presented might have been raised upon an appeal from the judgment and that therefore an appeal from the order denying defendant's motion does not lie. That theory, however, is not here applicable. Subsection 3 of section 1237 of the Penal Code provides that an appeal may be taken from any order after judgment, affecting the substantial rights of the party. The record before us indicates that an appeal from the judgment would not have presented the question here tendered for our consideration. The clerk's minutes show that defendant was sentenced to the state prison. They do not reveal that a county jail sentence had first been pronounced. It was therefore necessary for an appropriate record to be made which would show the initial jail sentence, the fact that defendant was legally restrained by reason of its imposition, and that he was thereafter returned to the court at which time the prior sentence was set aside and a more severe sentence imposed. A motion to vacate the prior judgment was an appropriate procedure for developing the factual situation as a basis for showing that the court lacked jurisdiction to pronounce the second judgment, and that it was therefore void. This was the procedure that was used in People v. McAllister. See also People v. Stratton, 133 Cal.App. 309, 314, 24 P.2d 174; People v. Walker, 132 Cal. 137, 64 P. 133; People v. Paraskevopolis, 42 Cal.App. 325, 183 P. 585. As it is manifest that the order in question was made after final judgment, and that if affected the substantial rights of the defendant, the right to appeal from the order is clear. People v. Godfrey, 100 Cal.App. 91, 279 P. 1030.

The order is reversed, the sentence to the state prison is vacated, and the sentence to the county jail for six months is reinstated.

I dissent.

Through an understandable inadvertence shared by the trial judge, the deputy district attorney any defense counsel, there was a failure at the time of rendering the original judgment to notice and dispose of the charge that appellant previously had been convicted of a felony involving the sale of narcotics. This prior, if found true, made mandatory the imposition of a state prison sentence. The trial judge acted with such promptness to correct the oversight that appellant was recalled from the county jail to the courtroom within twenty minutes after he had arrived at the jail following the imposition of sentence and before the remand order was received there.

The original judgment had not been entered in the minutes of the court. And in a technical sense appellant actually had not begun to serve the jail term because he was ordered back to the courtroom before the remand order, or mittimus, had reached the jail. Cf. Hynes v. United States, 7 Cir., 35 F.2d 734. Appellant suffered no prejudice whatsoever by reason of any restraint imposed upon him during the brief interval between the pronouncement of the original sentence and the correction thereof. He would have been under precisely the same restraint in any event. I do not agree that the decision in People v. McAllister, 15 Cal.2d 519, 102 P.2d 1072, reasonably interpreted, compels us to accord appellant the completely underserved benefit of such an inconsequential and technical irregularity. It is to be remembered that the McAllister the Supreme Court affirmed the order denying a motion to vacate the alternative provision of the sentence, which was added by way of modification.

I would affirm the order presently under review.

FOX, Presiding Justice.

ASHBURN, J., concurs.