People v. Grake

GRIFFIN, P.

After a jury trial defendant was convicted of one count of burglary and seven counts of forgery. He was alleged to have incurred two prior felony convictions, one of which he admitted, and the other was found to have been incurred by him. The trial court specified in its judgment that the sentences on the eight counts would run consecutively with respect to each other and also with respect to any prior uncompleted sentences which he might be serving.

His first contention arises out of events which occurred at the time of sentencing. Defendant’s attorney was asked at that time if he had anything further and he said, 1 The only thing he is interested in is: Have a motion on the record for a new trial.” The court then began discussing the probation report and said that probation would be denied, and asked the defendant’s attorney if he was ready for sen

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tencing. The attorney replied, “Yes, your Honor” and the court asked the defendant if he was ready to be sentenced and the defendant said that he was. The clerk arraigned defendant for judgment and his attorney was asked whether there was any legal cause why judgment should not be pronounced and defendant’s attorney replied, “No legal cause.” The trial court then imposed the sentence described above. After the court’s remarks were concluded, defendant’s attorney said “If it please the Court, may I move the Court for a new trial in this matter?” The court said, “Yes.” The deputy district attorney, who had heretofore been silent, inquired about the wording of the court’s pronounced sentence. The court explained the wording. The court then referred again to the motion for new trial which had been made by the defendant’s attorney. The deputy district attorney then said :“I would assume, your Honor, we would have to set it [the motion] down for a time for hearing.” The date of August 14 was agreed upon by all the parties present at the time for the hearing of the motion.

An examination of the clerk’s transcript indicates that the sentence pronounced by the trial court was entered in the minutes on August 6, the date of the sentencing. The hearing of the motion for a new trial was held on August 13. After determining that all the parties were present, the court said: “I think it [the motion] was lately made, but we will hear you.” The defendant’s attorney then observed that his motion was made too late under the provisions of Penal Code, section 1182. The court agreed with this observation and the deputy district attorney also stated that this was the ease. There is some discussion of other matters and then the court said, “The motion for new trial is denied.”