People v. Martin

California Court of Appeal Mar 3, 1947 No. Crim. 1982Published

Before: Peek

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Holding. The court held that a defendant on parole who has served a portion of a prison term satisfies the requirements for habitual criminal status under Penal Code section 644, and that a defendant has no constitutional right to be present at a hearing on a motion to vacate a judgment.

Issues

Whether a defendant on parole has 'served a term of imprisonment' for the purposes of habitual criminal sentencing under Penal Code section 644.
Whether a defendant has a right to be present at a hearing on a motion to vacate a judgment.
Whether the trial court sufficiently determined the degree of the crime admitted by the defendant.

Disposition. affirmed

Quotations verified verbatim against the opinion

“To so interpret said section would be to place a premium on the violation of a parole, a result entirely foreign to the purpose of the act.”

PEEK, J.

By the first count of an information filed by the District Attorney of Yolo County, defendant and two co-defendants were charged with the crime of burglary alleged to have been committed in said county on May 16, 1941. In the second count Martin was charged with having been convicted of the crime of robbery in Los Angeles County on October 19, 1931, for which crime he was imprisoned in the state prison at San Quentin. In the third count he was charged with the crime of burglary in the county of Los Angeles on May 14, 1936, for which crime he served a term in the state prison at Folsom. Upon arraignment in the superior court defendant entered a plea of not guilty to the offense charged in count one of the information and denied the prior convictions charged in counts two and three thereof. On August 12,1941, the date set for the trial of said charges, defendant appeared with counsel, withdrew his former, plea of not guilty and his denial of prior convictions, and admitted he had been previously convicted of the crimes charged in counts two and three of the information. By stipulation the district attorney and counsel for defendant agreed that the crime charged in count

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one was burglary in the second degree. Thereafter on August 14, 1941, the court by its judgment found defendant to be an habitual criminal under the provisions of section 644 of the Penal Code, and sentenced him accordingly.

On September 22, 1941, the superior court of said county made its order amending the prior judgment, stating that at the time of sentence the court had overlooked the fact that the term of imprisonment for the crime charged in count three of the information, to wit, the burglary committed in Los Angeles County for which defendant was adjudged guilty on March 14,1936, had not been completed by the defendant, and under the provisions of section 669 of the Penal Code determined that the unexpired portion of said term should run concurrent with the term of imprisonment on the judgment of conviction originally pronounced by the court.

No appeal or other action was taken by defendant either from the original judgment or from the order amending the same. Approximately four and one-half years later defendant Sled in said superior court a petition for a writ of

People v. Martin

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PEEK, J.

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