In Re Passerello

California Court of Appeal Aug 4, 1928 No. Docket No. 1479.Published

Before: Nourse

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Holding. The court held that the petitioner's claims were barred by the doctrine of res judicata due to a final judgment on appeal, and that the trial court's reduction of the verdict, even if erroneous, was within its jurisdiction and not reviewable via habeas corpus.

Issues

Whether a trial judge has the jurisdiction to reduce a jury's verdict of first-degree burglary to second-degree burglary.
Whether a final judgment on appeal precludes the petitioner from relitigating the validity of the judgment in a habeas corpus proceeding.
Whether habeas corpus is an appropriate remedy for alleged errors committed within the trial court's jurisdiction.

Disposition. dismissed

Quotations verified verbatim against the opinion

“the judgment of the latter court on the appeal is nevertheless a final judgment and the point raised is res judicata in so far as this petitioner is concerned.”

“When, therefore, the trial judge reduced the verdict to second degree burglary he merely committed error, but such error was committed within his jurisdiction and is not reviewable on this proceeding because habeas corpus is not a writ of error.”

NOURSE, J.

Petitioner was tried on an information framed in two counts—burglary and grand larceny. The jury rendered its verdict finding him guilty on both counts and fixing the degree of burglary under the first count as of the first degree. The trial judge, in entering judgment, sentenced the petitioner on both counts in accord with the verdict of the jury, but appended an order purporting to find that petitioner was guilty of burglary in the second degree. An appeal was taken from the judgment and af

[444]

firmed in

People

Sugarman and Passarello,

80 Cal. App. 321 [251 Pac. 949]. The board of prison directors thereupon fixed the term of petitioner’s sentence as one year upon the grand larceny count and eight years on the burglary count. The petitioner sues out this writ seeking his release from the state penitentiary on the ground that the judgment under which he is confined is void because the act of burglary upon which he was convicted was in fact burglary of the second degree; that the verdict of the jury finding him guilty of first degree burglary was, therefore, not supported by the evidence; and that the trial judge ¡was without jurisdiction to reduce the degree of the crime from that found by the jury.

All the points raised on this application were raised before the district court of the second district on the appeal from the judgment. It was there held on the authority of the rule cited in 16 0. J., page 1303, that where the trial court is of the opinion that the evidence does not support the verdict rendered but does support a conviction of a lesser offense necessarily included in the other, the court has power to impose sentence for the lesser offense on the theory that, by the verdict of guilty of the greater offense, the jury decided that the defendant was guilty of the lesser. Numerous authorities were cited in support of the rule, but it was pointed out in the opinion that no California case had covered the subject.

After the opinion on that appeal had been rendered, and after the judgment therein had become final, the supreme court in

In Re Passerello

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NOURSE, J.

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