People v. Johnson

California Supreme Court Mar 2, 1891 No. No. 20711Published

Before: Belcher

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Holding. The court held that the defendant's admission of a prior conviction authorized the ten-year sentence, and that the defendant waived procedural objections regarding the timing of sentencing and the recording of oral jury instructions.

Issues

Whether a ten-year sentence for burglary with a prior conviction was legal despite the initial record failing to reflect the prior conviction.
Whether the defendant waived the statutory time requirement for pronouncing judgment by failing to object.
Whether the court's oral charge to the jury constituted reversible error.
Whether the judgment was legally sufficient despite alleged omissions regarding jurisdiction and sentencing language.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The defendant clearly had the right at any time to withdraw his plea of not guilty to the charge of prior conviction, and to confess the same; and having done so, the jury had nothing to say or find in regard to it.”

“one found guilty of a felony may waive the time which the code says must elapse between the verdict and sentence, and may consent that judgment be pronounced immediately.”

“The well-settled rule is, that error is not to be inferred, but must affirmatively appear in the record.”

Synopsis

Criminal Law — Burglary — Information — Previous Conviction — Withdrawal of Plea — Confession — Sentence. —One charged in an information with burglary and a previous conviction of grand larceny may withdraw a plea of not guilty to the charge of previous conviction, and confess the same at any time, and where he does so on the day of trial, and is found guilty of burglary only, both offenses may be taken into consideration, and will warrant a penalty of ten years’ imprisonment.

Id. — Conviction of Felony — Waiver of Time for Sentence. — One found guilty of a felony may waive the time which the code says must elapse between the verdict and sentence, and may consent that judgment he pronounced immediately.

Id. — Appeal — Presumption of Consent. — Where it does not appear in the record that the defendant made any objection in the court below to the shortness of time between the verdict and sentence, he must be presumed to have consented to it.

Id. — Oral Charge — Shorthand Reporter — Presumption upon Appeal. —Where the charge to the jury was given orally, it will be presumed, upon appeal, in the absence of proof to the contrary, that it was taken down by the phonographic reporter.

Id. —Appeal — Presumption against Error. —Error will not be inferred upon appeal, but must affirmatively appear in the record.

Id.—Sentence — Informing Defendant — Recitals in Judgment.—An objection to a judgment, on the ground that the defendant was not informed by the court of the nature of the charge against him, of his plea, or of the verdict, is sufficiently met and answered by the recitals in the certified copy of the judgment contained in the record, which show sufficient to meet the requirements of the Penal Code in that respect.

Id.—Venue of Offense — Judgment.—If the place where the offense is committed is charged in the information, it need not be stated in the judgment.

Id.— Direction for Imprisonment-—Form of Judgment. — A judgment by which it is “ordered, adjudged, and decreed” that the defendant be punished by imprisonment in the state prison is a sufficient direction that he be imprisoned.

Belcher, C. The defendant was charged in the information filed against him with the crime of burglary, and with a prior conviction of grand larceny. He was tried, and found guilty of burglary in the second degree. Judgment was entered that he be imprisoned in the state prison for the term of ten years. From this judgment he has appealed, but the record brought up contains no bill of exceptions and none of the instructions given, to the jury.

In support of the appeal, it is argued that the defendant, as shown by the record, was arraigned only for the crime of burglary, and pleaded simply not guilty; that this plea put in issue every allegation of the information, and upon it he was tried, and found guilty simply of burglary in the second degree; that as there was no verdict as to the prior conviction, it could not be taken into consideration in pronouncing judgment, and hence, as the maximum term of imprisonment authorized by the statute in such a case was five years (Pen. Code, sec. 461), the judgment was illegal, and should be reversed.

[174]It is true that the record as originally filed in this court showed no admission by the defendant, or finding, as to the alleged prior conviction, but on suggestion of a diminution of the record, an amendment duly certified was subsequently filed, showing that after the appeal was taken the trial court amended its record of the case nunc pro tunc, so as to show that on the day of the trial the defendant admitted the prior conviction set forth in the information, and withdrew his former denial thereof. The record, therefore, as now presented, does not support the argument.

The defendant clearly had the right at any time to withdraw his plea of not guilty to the charge of prior conviction, and to confess the same; and having done so, the jury had nothing to say or find in regard to it. The verdict covered the only issue submitted to the jury, and upon it the court was authorized to fix the penalty, as it did, at ten years’ imprisonment. (Pen. Code, sec. 666; People v. Brooks, 65 Cal. 300.)

It is also argued that the record affirmatively shows error, because it appears therefrom that the verdict was rendered on January 15, 1890, and the court thereupon appointed January 17th as the time for pronouncing judgment, and on the last-named day pronounced the judgment appealed from. It is said that, under section 1191 of the Penal Code, the time fixed for pronouncing judgment in cases of felony must be at least two days after the verdict, and that the minutes show that two full days could not have intervened.

People v. Johnson

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