People v. Clifton

CONLEY, P. J.

This is the second time that this case has been before this court. The defendant, Oscar Archie Clifton, having been convicted at a trial by a jury of the crime of assault with intent to commit rape, previously appealed his case, and on January 25, 1967, an opinion was filed in this court affirming his conviction, but finding that as the trial court had erroneously committed the defendant to the Tulare County jail rather than to a state prison, as provided by the applicable code section, we directed that he be resenteneed by the trial court; we specifically provided that the trial court could also reconsider its previous refusal of probation if it wished to do so. When the remittitur was filed with the county clerk at Visalia, the proceedings here in question took place. The trial judge, who replaced the original trial judge who had meanwhile retired, permitted the defendant’s counsel to make a second motion for a new trial, which he denied.

The appellant raises three points:

1) It is urged that it was error on the part of the successor to Judge Meyers to hear the second motion for a new trial;

2) It is urged that the Honorable Robert K. Meyers (although retired), as he was the judge who imposed the former sentence upon the defendant, should have heard the second motion for a new trial; and

(3) The appellant claims that it was error for the judge who tried the case not to have instructed the jury on his own motion that they might find the defendant guilty of a lesser included offense.

In answer to the first point, it was not proper for the trial judge to permit the second motion for a new trial. Before the imposition of the former judgment, Judge Meyers had heard and denied a motion for a new trial and that ended the defendant’s right to seek such remedy

(Coombs

v.

Hibberd,

43 Cal. 452;

People

v.

Walker,

142 Cal. 90 [75 P. 658];

People

[862]