People v. Kelly

California Supreme Court Mar 14, 1898 No. Crim. No. 342Published

Before: Fleet

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Holding. The court held that a judgment imposing a sentence exceeding the standard maximum for a crime is not void when the record establishes the defendant's prior convictions, even if the clerk failed to formally recite those prior convictions in the judgment entry. Such a clerical omission is considered a technical error that does not affect the defendant's substantial rights and does not warrant reversal.

Issues

Whether a judgment is void when it imposes a sentence exceeding the standard statutory maximum without explicitly reciting the prior convictions that justify the enhanced penalty.
Whether a clerk's failure to include a prior conviction in the judgment entry constitutes a reversible error affecting the defendant's substantial rights.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“All that is necessary as against this objection, is that the judgment shall sufficiently express that which is adjudged; it need contain no recital of the facts upon which it is based.”

“In such a case it would be the idlest ceremony, so far as affecting any right of defendant, to reverse the judgment.”

Synopsis

•Criminal Law—Burglary—Admission of Prior Conviction—Joint Information—Separate Trials—Construction of Becord—Certificate of Clerk. Where an information charged several defendants jointly with the crime of burglary, but charged them severally with prior convictions, ■and they demanded separate trials, and were each proceeded against separately, and it appears that the defendant appealing was ■charged with six prior convictions, four for petit larceny and two for ■burglary in the second degree, a minute entry showing that upon his arraignment, “defendant appeared in open court, and pleaded not ■guilty and admits prior conviction,” must be taken as importing an admission of each and all of the prior convictions charged, and must .also be taken as referring to the plea made by the defendant appealing and not to that made by any codefendant, it being only the •minutes of the proceedings affecting such defendant which the clerk could properly include in the judgment roll, or certify to as being a correct transcript of the record upon his appeal.

Sd.—Silence of Judgment as to Prior Conviction—Clerical Misprision —Error not Affecting Substantial Bights.—A judgment upon a conviction of burglary in the second degree, imposing a longer sentence .than is allowed except upon prior conviction of a felony, which, owing to the clerical misprision or mistake of the clerk in entering it, does not recite such prior conviction, is erroneous, but not void, and where the record otherwise shows such prior conviction, which the court had a right to consider in imposing the sentence, the omission of the clerk to recite it is merely a technical error not affecting the substantial rights of the appellant, and is not ground for reversal of the judgment.

VAN FLEET, J. The single point made by appellant for a reversal is that the judgment is void because the punishment imposed is in excess of that prescribed by the statute for the offense of which he was convicted. The conviction was of burglary in the second degree, for which the maximum penalty is five years’ imprisonment in the state prison, while the judgment imposes an imprisonment of ten years. But section 666 of the Penal Code provides that, where a person has been previously convicted of an offense punishable by imprisonment in the state prison, and thereafter commits any offense which upon a first conviction would be punishable by imprisonment in the state prison for five years, or any less term, such person is punishable upon such subsequent conviction by imprisonment in the state prison for a term not exceeding ten years. In this case the information charged the defendant with having suffered six prior convictions—four for petit larceny, and two for burglary in the second degree; and the minutes show that upon his arraignment “defendant appeared in open court and pleaded not guilty, and admits prior conviction,” which entry must be taken as importing an admission of each and all of the prior convictions charged.

It is objected that it does not appear that this entry had refer-, ence to the appellant. This objection is based upon the fact [273]that by the information the appellant was charged jointly with two others with the commission of the offense; and it is urged that, since the entry in question does not give the name of the particular defendant to whom it refers, there is nothing to show that the admission there recited was not in fact made by one of appellant’s codefendants, each of whom was likewise charged with prior conviction. But the record sufficiently discloses that the several defendants named in the information demanded separate trials, and were thereafter proceeded against separately; and since it was only the minutes of the proceedings affecting this defendant which the clerk could properly include as a part of the judgment-roll herein, and as that official has duly certified the record as being a correct transcript of the record in this case, the entry in question must be taken and deemed to have reference to appellant. (People v. Gaines, 52 Cal. 479.)

The judgment, however, as entered by the clerk, makes no reference to the fact of a prior conviction, merely reciting defendant’s conviction of the offense charged—that of burglary in the second degree; and it is urged that the judgment is for that reason void; that, being silent as to the prior conviction, it shows no warrant for the punishment imposed, and is upon its face excessive and beyond the jurisdiction of the court.

People v. Kelly

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