PEOPLE v. BLALOCK (1959)

This is an appeal from an order wherein the trial court denied the defendant's motion to annul and vacate a judgment of conviction.

The defendant was charged in an information in three counts filed on February 18, 1957 in Santa Barbara County: in Count One of the information the defendant was charged with committing a burglary on September 9, 1956; in Count Two he was charged with attempting to commit a burglary on February 1, 1957 and in Count Three he was charged with committing a burglary on February 1, 1957.

The defendant pleaded not guilty. There were four trials. Before the first trial the defendant made a motion to dismiss Counts One and Two of the information and such motion was granted. The defendant having entered a plea of not guilty to Count Three the cause started to trial on March 11, 1957 and on March 12, 1957 a motion for a mistrial was granted and defendant was discharged, all of which will be alluded to hereinafter.

On March 14, 1957 the District Attorney made a motion to reset the cause for trial and the defendant pleaded that he had been once in jeopardy. The court on the same day, March 14, 1957, vacated the order of discharge made on March 12, 1957.

In an amended information filed on March 25, 1957 the defendant was charged with burglary (apparently the same count which was set forth in Count One of the original information) and with five prior felony (burglaries) convictions in the State of Texas for each of which he had served a term in prison.

On March 25, 1957 the defendant pleaded not guilty to the charge set forth in the amended information and denied the prior convictions although he alter admitted such prior convictions. The defendant also pleaded that he had been once in jeopardy. The court granted the motion of the District Attorney to dismiss the plea of once in jeopardy.

Trial by jury was had on April 16, 1957 and April 17, 1957 and another mistrial was declared. On May 18, 1957 another trial was commenced and the jury was dismissed because of its inability to reach a verdict. In June, 1957 another trial was started and defendant on June 14, 1957 was convicted of burglary (found to be in the second degree), and on July 1, 1957 was sentenced to the state prison. No appeal was taken from that judgment.

Thereafter in December, 1957 the defendant filed a motion to annul, vacate and set aside the judgment. He asserts that he was discharged at the conclusion of the trial which started on March 12, 1957 and that therefore the court had no jurisdiction to try him thereafter.

The record discloses that in the course of events in the trial which started on March 12, 1957, a deputy district attorney stated to the court that he was eliciting certain testimony from an alleged victim concerning certain matters which occurred on September 9, 1956 ‘to show a similar offense’ or ‘method of operation’ or ‘plan or scheme’ and that such testimony was limited to that purpose only and that it was not for the purpose of showing ‘a separate offense or anything of that sort.’ Upon such representation the judge overruled the objection to the questions. It apparently developed that the representations of the deputy district attorney were not wholly correct and the court, upon motion of the defendant, struck the testimony with reference to the occurrences of September 9, 1956. The defendant assigned the conduct as misconduct and moved for a mistrial and the motion was granted. The following, among other things, was stated by and between the judge and counsel at the time:

‘The Court: Well, that motion is granted. * * *

‘The Court: After all, he is entitled to a fair and square trial. Some of these rules are very limited and technical, as you know. I had to worm it out of you that you were offering the testimony in both instances for a limited purpose. The jury are laymen, and they must wonder about a thing like that. And while I can very readily see, under appropriate instructions, the applicability and the admissibility and materiality, under very definite and specific arrangements with the testimony first elicited as to the defendant, I am satisfied that we now have error, and that it would be reversible error.

‘The Court: And the motion for the mistrial is granted.

‘The Court: The jury is discharged. The mistrial is granted and the jury discharged.

‘The Court: I heard all that. You need not argue the facts. I am not interested in them at all at this point. So the defendant will be discharged from custody.’ (Emphasis added.) (Rep.Tr. pp. 108, 109, 110.)

Thereupon the deputy district attorney directed a policeman of the Santa Barbara police force to ‘take the defendant into custody, on the ground that there are reasonable grounds to believe that he has committed a felony.’ Presumably the deputy district attorney had in mind the same charge and offense for which the defendant had been on trial. The defendant was placed in custody and remained in such status at all times.

The Clerk's Minutes show the following for the occurrence on March 12, 1957: ‘* * * It is ordered that said Motion for Mistrial, be, and the same is hereby granted. The jury was then discharged and the defendant discharged from custody.’ (Emphasis added.)

The Minutes of March 14, 1957 recite the following: ‘* * * the Court upon its own motion orders that the order heretofore made discharging the defendant from custody, be, and the same is hereby vacated and set aside.’; and ‘* * * The defendant was then remanded to the custody of the Sheriff.’ (Emphasis added.)

It is the appellant's contention that the court could not after discharging him on March 12, 1957 vacate that order except under appropriate procedures and that the order of March 14, 1957 setting aside the discharge order was ineffective and void.

Where the judgment is void on the face of the record, it may be attacked either by appeal from the judgment or by a motion to vacate the judgment. Both remedies are not available in the same case but, as heretofore pointed out, the defendant in this case did not appeal from the judgment. See, People v. Flohr, 30 Cal.App.2d 576, 579, 86 P.2d 862; People v. Blalock, Cal.App., 338 P.2d 578.

It follows that we must determine whether the judgment is void on the face of the record.

Section 1141 of Chapter 3 (conduct of the jury after the cause is submitted to (them), Title 7 (Proceedings after the commencement of trial and before judgment), Part 2 (Criminal Procedure), of the Penal Code reads as follows:

‘In all cases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause is submitted to them, the cause may be again tried.’ (Emphasis added.)

There was no showing that the order as made by the court on March 12 was not judicially intended as of that time. There was no evidence at the occasion of the setting aside the order discharging the defendant to the effect that the original order was anything other than what the court intended it should be.

The judge said at the time of the proceedings on March 14, 1957, among other things, the following:

‘The Court: No. About that matter I have nothing to say. On the whole perhaps it is best for him to be held in custody, but I don't think I should have made the order the other day that he should be released; and so, I will vacate that part of the order on released from custody or discharged, on the ground that it was, in my opinion, sheer error; I just made a bull, a mistake, a faux pas. So, I vacate it. Now, there is where it stands.’

The error was not classed as anything clerical. Later, at the hearing on April 28, 1958, on the motion to vacate and annul the judgment, wherein the defendant was convicted of burglary, the court stated with reference to the discharge order of March 12:

‘The Court: It wasn't a clerical error——

‘The Court: (continued)—and I intended to make it when it was made.

‘The Court: Oh, yes. There is no doubt about that.’

Again, on May 5, 1958, with reference to the same matter, the court stated:

‘The Court: If I had given the matter any thought, of course, I never would have done it.

‘The Court: But I did, nevertheless, I think it is only fair to say, intend to do it at the time. (Emphasis added.)

‘The Court: Well, broadly speaking, it certainly was not—to sound off in that fashion. I knew better than that.’

We think that under the circumstances the judge had the power to make the order he did make on March 12, 1957 and that it was a judicial decision and could not be set aside or vacated, as attempted on March 14, 1957.

In McMahan v. Baringer, 49 Cal.App.2d 431, 432, 122 P.2d 63, the court said with reference to vacating a judgment which had been entered upon an order sustaining a demurrer without leave to amend:

‘* * * The only part of the record which indicates a theory upon which the motion was made is the citation, in the notice, of section 473 of the Code of Civil Procedure. There was no showing of mistake, inadvertence, surprise, excusable neglect, clerical error, or that the judgment as signed did not express the actual judicial intention of the court at the time it was signed. The judgment was not void.

‘Apparently, in granting the motion, the court concluded it had made an error in the exercise of judgment.

‘While a court has power to set aside judgments and orders inadvertently made which are not actually the result of the exercise of judgment, it has no power, having once made its decision after regular submission, to set aside or amend judicial error except under appropriate statutory procedure.’ (Citing cases.)

In People v. Superior Court, 214 Cal. 513, 6 P.2d 955, the court had before it the issuance of a writ of mandate to require the Superior Court to reinstate a criminal cause that had theretofore been dismissed on the ground that the indictment did not charge a public offense and to that end to cause the defendant to be reapprehended, the jury to be resummoned and reassembled and thereafter require the cause to proceed to a verdict and judgment. The facts were that the defendant was charged with and indicted for perjury. His demurrer to the indictment was overruled and he entered a plea of not guilty and the cause went to trial. After the prosecution rested its case the defendant moved for a directed verdict and a dismissal of the action. The court sustained the contention and thereupon entered its order ‘dismissing the indictment, releasing the defendant, exonerating his bail, and discharging the jury.’ (Emphasis added.)

The defendant in that case contended that if the indictment did not charge an offense, then there was no error and that ‘if it does charge an offense, nevertheless the defendant is immune from further prosecution.’ The court said:

‘* * * This situation makes the further prosecution of defendant on this charge unwarranted and illegal. Pen.Code, §§ 1117 and 1141. This question has been inferentially decided several times in construing section 1008 of said Code.’ (Citing cases.)

We believe that the order made denying defendant's motion to annul, vacate, and set aside the judgment should be reversed and that said judgment of July 1, 1957 should be set aside and vacated under the peculiar circumstances of this case.

It is so ordered.

FOURT, Acting Presiding Justice.

LILLIE, J., and SHEA, J. pro tem., concur. Hearing granted; WHITE, J., not participating.