People v. Finkel

NOURSE, P. J.

The appellant herein was convicted in a jury trial, on a single indictment containing 13 counts, of six counts of felony, to wit, three of burglary, one of rape, one of robbery and one of assault with intent to commit rape, and of one count of simple assault. The offenses were committed against three individuals on three separate occasions. On each occasion there was a burglary and an attack on the person of a female inhabitant, and on one occasion moreover a robbery. On February 11, 1944, defendant was in one judgment sentenced to imprisonment at San Quentin for the period prescribed by law with respect to the six felony counts, the six sentences to run consecutively, and to five months in the county jail for the simple assault, sentence to run concurrently with time already served. On appeal the judgment was affirmed by this court

(People

v.

Finkel,

70 Cal.App.2d 508 [161 P.2d 298]) and appellant’s petition for a hearing by the Supreme Court was denied September 13, 1945.

On April 25, 1949, appellant filed in the superior court a motion to annul, vacate and set aside the portion of the judgment ordering consecutive terms of imprisonment, on the ground that the trial court was without jurisdiction to order terms of imprisonment to run consecutively where all were

[815]

imposed by a single judgment and because of other circumstances to be stated hereafter. From the order denying said motion to annul, this appeal is taken by appellant in propria persona.

Respondent argues that appellant cannot show any defect in the original judgment of February 11, 1944, as it was not made part of the record in this ease. We think it expedient to take judicial notice of the transcript of the judgment contained in our record on the first appeal

(Hammell

v.

Britton,

19 Cal.2d 72, 75 [119 P.2d 333];

City of Los Angeles