People v. Knight

COUGHLIN, J.

The issue on this appeal is whether the court which grants probation to a defendant convicted of burglary and thereafter revokes such probation because, in the interim, the defendant commits, is convicted of and sentenced to the state prison for manslaughter, is authorized to order the state prison sentence imposed for the burglary offense to run consecutively with the sentence on the manslaughter charge.

The defendant, who is the appellant herein, pleaded guilty to a charge of burglary, i.e., a violation of Penal Code, section 459, which the court determined to be burglary in the first degree; applied for probation; probation was granted and the imposition of sentence was continued for five years; one of the terms of probation was that the defendant should not violate any law; thereafter the defendant committed, was charged with, and pleaded guilty to the offense of manslaughter ; thereupon, judgment was pronounced for this offense decreeing imprisonment in the state prison, and reciting that the sentence thus imposed should “run concurrently with any unserved sentence heretofore imposed on the defendant”; on the following day, the court revoked the probation granted to him in the burglary case and sentenced him to imprisonment in the state prison, ordering that the sentence so imposed should run consecutively with that imposed in the manslaughter case.

The defendant appeals from the judgment in the burglary case, contending that the court did not have authority to order the sentence thereby imposed to run consecutively with the manslaughter sentence.

Pertinent parts of section 669 of the Penal Code provide as follows:

[250]

“When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently, or whether the imprisonment to which he is or has been sentenced upon the second or other subsequent conviction shall commence at the termination of the first term of imprisonment to which he has been sentenced, or at the termination of the second or subsequent term of imprisonment to which he has been sentenced, as the case may be; ... In the event that the court at the time of pronouncing the second or other judgment upon such person had no knowledge of a prior existing judgment or judgments, or having knowledge, fails to determine how the terms of imprisonment shall run in relation to each other, then, upon such failure so to determine, or upon such prior judgment or judgments being brought to the attention of the court at any time prior to the expiration of 60 days from and after the actual commencement of imprisonment upon the second or other subsequent judgments, the court shall, in the absence of the defendant and within 60 days of such notice, determine how the term of imprisonment upon said second or other subsequent judgment shall run with reference to the prior incompleted term or terms of imprisonment. ’ ’