In Re Tung Fong

California Court of Appeal Oct 26, 1922 No. Crim. No. 664.Published

Before: Finch

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Holding. The court held that a police court has the inherent power to amend its records to reflect actual proceedings, possesses the authority to impose cumulative sentences, and that a second offense for sentencing purposes must occur after a conviction for the first.

Issues

Does a police court have the authority to amend its minutes to reflect the actual order of sentencing?
Do police courts have the jurisdiction to impose cumulative sentences?
Must a second offense occur after a conviction for a first offense to trigger enhanced penalties under the statute?

Disposition. writ discharged and petition denied

Quotations verified verbatim against the opinion

“Prior to the enactment of that section it was held that police courts had jurisdiction to impose cumulative sentences.”

“in order to justify the heavier penalty the second offense must have been committed after conviction of the first.”

FINCH, P. J.

June 5, 1922, in the police court of the city of Sacramento, in ease No. 1227, the petitioner was adjudged guilty of having had a preparation of morphine in

his

possession on the first day of June, 1922, contrary to the provisions of the act of 1907, and amendments thereto, regulating the sale and use of poisons. (Stats. 1907, p. 124.) Thereafter on the same day, in case No. 1228, he was adjudged guilty of having had a preparation of cocaine in his possession on the first day of June, 1922, contrary to the provisions of the act. After both convictions he was sentenced under the first charge to pay a fine of one hundred dollars and to be imprisoned in the county jail for the term of ninety days and under the second charge he was sentenced to imprisonment in the county jail for ninety days. The judgment in the latter case provided: “The term of imprisonment herein to commence at the expiration of the term of imprisonment imposed upon said defendant in the ease of

People

Tong Fong,

No. 1227.” The court minutes of June 5th did not recite that the judgment of guilty in case No. 1228 was rendered prior to the time sentence was pronounced in case No. 1227, and October 4, 1922, on motion of the prosecution, the court amended its minutes of June 5th to recite that sentence was

[501]

not imposed in case No. 1227 until after judgment of guilty was rendered in case No. 1228. Petitioner served the full term of imprisonment imposed in case No. 1227 and then filed his petition herein for a writ of

habeas corpus.

Petitioner contends that the order of the police court purporting to amend its minutes is null and void. In

Wildenhayn

Justice Court,

34 Cal. App. 306 [167 Pac. 305], it was held that a justice’s court as well as a court of record, has the inherent power to amend its records so as to make them speak the truth with respect to the actual orders it has made. Article VI, section 12, of the state constitution provides: “The supreme court, the district courts of appeal, the superior courts, and such other courts as the legislature shall prescribe, shall be courts of record.” The Sacramento city charter, duly approved by the legislature, provides that the police court “shall be considered a court of record, and shall have a seal.” The court had authority to amend its minutes to conform to the sentence actually pronounced, whether considered as a court of record or not.

In Re Tung Fong

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FINCH, P. J.

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