In Re Ferguson

California Court of Appeal Mar 17, 1965 No. Crim. 10579Published

Before: Frampton

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Holding. The court held that a defendant who successfully moves for a new trial cannot be subjected to a more severe sentence than that recommended by the jury in the first trial, as doing so would unconstitutionally discourage the exercise of the right to seek a new trial.

Issues

Whether a trial court may impose a more severe sentence upon retrial than the sentence recommended by the jury in the initial trial.
Whether a defendant must specially plead double jeopardy when the limitation on punishment is apparent from the court's own records in the same case.
Whether habeas corpus is an appropriate remedy when a sentence exceeds the maximum provided by law.

Disposition. granted

Quotations verified verbatim against the opinion

“The recommendation of the jury that the defendant shall be punished by imprisonment in the county jail is binding upon the court and it may not, in disregard thereof, impose a sentence of imprisonment in the state prison.”

“It was his right to make that motion, and under the Henderson doctrine he should not be required to take the risk of a long prison term (1 to 50 years under Pen. Code, § 264) in order to exercise that right.”

“Inasmuch as petitioner has already been confined for a longer period than the law requires in his ease, he need serve no more time for this conviction.”

FRAMPTON, J. pro tem.

Petitioner, Allen Lee Ferguson, originally filed his petition in propria persona, entitled “Petition for Writ of Error Comm Nobis.” On January 26, 1965, this court issued an order to show cause why a writ of habeas corpus should not issue, and set the hearing thereon for March 2, 1965. At such hearing, petitioner appeared through, and has subsequently been represented by Attorney Sam Houston Allen. Petitioner claims that in 1956 he was tried and convicted of a misdemeanor. A new trial was granted and upon the second trial in 1957 he was convicted of a felony and sentenced to state prison where he is now being held.

Because of the meager content of the petition, this court felt it necessary to, and did, examine the superior court file of the proceedings. This file disclosed that, on March 2, 1956, petitioner was charged by information filed by the District Attorney of Los Angeles County, with the crime of rape in violation of section 261, subdivision 1, of the Penal Code. The cause was brought to trial before a jury and on May 23, 1956, the jury returned its verdict finding petitioner guilty as charged with the recommendation in its verdict that punishment be by imprisonment in the county jail. A motion for a new trial was granted and on the second trial upon the same charge, the jury on January 8, 1957, returned its verdict finding the petitioner guilty with the recommendation that punishment be by imprisonment in the state prison.

[81]

A motion for new trial, and probation, was denied, and on February 5,1957, petitioner was sentenced to state prison for the term prescribed by law.

Although the petition is entitled “Petition for Writ of Error G or Mm Nobis,” the substance of it shows that relief may be granted under habeas corpus, and we treat it as an application for relief under the latter.

Section 264 of the Penal Code provides “Rape is punishable by imprisonment in the state prison not less than three years, except where the offense is under subdivision 1 of Section 261 of the Penal Code, in which case the punishment shall be either by imprisonment in the county jail for not more than one year or in the state prison for not more than 50 years,

and in such case the jury shall recommend by their verdict whether the punishment shall be by imprisonment in the county jail or in the state

In Re Ferguson

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