People v. Hammond

MARKS, J.

This is an appeal from an order of the Superior Court of Fresno County fixing the degree of the crime of which defendant stood convicted on a plea of guilty and from a judgment pronounced upon him.

[147]

On June 7, 1917, defendant and his wife, Anna Hammond, each entered a plea of guilty to an information charging murder. The trial court did not fix the degree of the crime, but sentenced Hammond to imprisonment for life in the state penitentiary at Folsom. In December, 1937, Hammond sought his release from imprisonment by means of a writ of

habeas corpus.

In that proceeding the appellate court made the following order:

“The writ is discharged and the prisoner is remanded with direction to the warden of Folsom state prison to deliver the petitioner into the custody of the sheriff of Fresno county at a time to be fixed by the superior court of that county, without unnecessary delay, for the purpose of allowing the department of said court having charge of criminal cases to ascertain and fix a degree of the offense of which the defendant has pleaded guilty, and thereupon pronouncing such sentence upon the petitioner as may appear to said court to be just and proper, and order the return of the petitioner to the warden of the Folsom state prison, to be there held in execution of the judgment that may be so pronounced upon the petitioner.”

(In re Hammond,

24 Cal. App. (2d) 18 [74 Pac. (2d) 308].)

In reaching that conclusion it was held that the failure of the trial court to find the degree of the crime did not render the first judgment void, but merely defective.

Defendant maintains that the procedure directed in the

habeas corpus

proceeding by the District Court of Appeal, and followed by the superior court, was contrary to law and void because the superior court had lost jurisdiction, judgment having been once pronounced and more than twenty years having elapsed since his plea of guilty was entered. (Sec. 1191, Pen. Code.)