In Re Miller

California Court of Appeal Dec 9, 1959 No. Crim. 3030Published

Before: Schottky

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Holding. The court held that a judgment of conviction is invalid when the trial court fails to exercise reasonable diligence to secure the defendant's presence for sentencing, particularly when the defendant's location is known.

Issues

Whether the trial court violated Penal Code section 1193 by pronouncing judgment in the defendant's absence without exercising reasonable diligence to secure his presence.
Whether the trial court erred by failing to receive evidence regarding mitigation or aggravation of punishment as required by Penal Code section 1204.

Disposition. remanded

Quotations verified verbatim against the opinion

“We think it is clear that there was not “the exercise of reasonable diligence to procure the presence of the defendant” and that the court had no right to pronounce judgment against him without his presence in court.”

“The court failed to receive any evidence whatever on the matter of punishment, and in fact merely followed the suggestions made to it by the deputy district attorney.”

SCHOTTKY, J.

Petitioner seeks a writ of habeas corpus to obtain his release from Folsom State Prison upon the ground that he is being held there pursuant to an invalid judgment of conviction.

The facts which are not in dispute are as follows: On March 23, 1953, petitioner pleaded guilty in the Superior Court of Los Angeles County to the crime of issuing a check without sufficient funds. (Pen. Code, § 476a.) The matter was continued for the purpose of pronouncing judgment until June 15, 1953, and petitioner was released on bail. Upon his failure to appear on the date set for pronouncement of judgment, the ease was put off calendar and a bench warrant issued for his arrest. While out on bail petitioner was arrested in San Francisco. He was tried and convicted in the Superior Court of San Francisco County of a violation of section 11500 of the Health and Safety Code (possession of narcotics) and sent to San Quentin Prison. Whether his arrest in San Francisco occurred before or after June 15, 1953, is not clear.

On about August 4, 1953, petitioner mailed to the district attorney of Los Angeles County an “application” addressed to the superior court of that county. In it he asked leave to withdraw his previous plea of guilty to the Los Angeles information and for a trial by jury upon the charges contained in it; in the alternative he demanded that he be brought before the Superior Court of Los Angeles County for entry of judgment and sentencing. Whether or not the district at

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torney ever presented this “application” to the superior court does not appear from the papers before us. Petitioner and the district attorney’s office carried on a great deal of correspondence. Finally, on January 18, 1954, the district attorney moved that the case be returned to the calendar in the superior court and that judgment of conviction be entered. The court adjudged petitioner guilty of a violation of section 476a of the Penal Code, a felony, as described in count 1 of the information and dismissed the remaining counts of the information in the interest of justice. Petitioner was sentenced to the state prison for the term prescribed by law, the sentence to run concurrently with that received by him for the San Francisco conviction. Petitioner was not notified beforehand that these proceedings were to take place and was not present at them, either personally or through counsel. The court took notice of the fact that he was then imprisoned in San Quentin.

In Re Miller

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SCHOTTKY, J.

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