People v. Ramirez

BARNARD, P. J. In an information filed on July 10, 1930, the defendant was charged with the crime of burglary. After a plea of guilty judgment was pronounced and he was ordered confined in a state penitentiary. On October 28', 1933, he filed a motion to vacate the judgment on the ground that the same was void and that the court had no jurisdiction to make and enter the same for the reason that the trial court, without any evidence before it to show the degree thereof, fixed the crime as burglary in the first degree. From an order denying this motion, this appeal is taken.

The sole contention here made is that the judgment was void and the court was without jurisdiction to enter the same for the reason given above, and that as a result thereof the appellant has been sentenced without due process of law and has been given a punishment greater than that warranted by the facts.

It may be conceded that where a judgment is void upon its face, it may be attacked by a motion to vacate the same and that under such circumstances an appeal will lie from an order refusing to set the same aside (People v. Bowles, 135 Cal. App. 514 [27 Pac. (2d) 411]). A similar procedure was followed and approved in the ease of People v. Paraskevopolis, 42 Cal. App. 325 [183 Pac. 585], where it was held that judgment had not been legally pronounced since the court took no evidence as to the degree of the crime and made no determination thereof. A somewhat similar holding is found in People v. Stratton, 133 Cal. App. 309 [24 Pac. (2d) 174], where it appeared that no evidence was before the court upon the question of the degree of the crime, and none to show whether the offense was committed through torture or at a time when the defendant was armed with a deadly weapon.

The record now before us fails to disclose a situation coming within the scope of the cases just mentioned. The judgment here was not void on its face, and there is nothing to substantiate the claim that the degree of the crime [382]was iked in the absence of any evidence upon the subject. It is well settled that an appellant must produce a record which discloses that the error relied on has in fact occurred (People v. Ferguson, 124 Cal. App. 221 [12 Pac. (2d) 158, 960]). The clerk’s transcript contains copies of the information and of an amended commitment filed December 5, 1930, but purporting to have been signed on July 22, 1930, which recites that the appellant had been duly convicted of second degree burglary. The original judgment is not set forth and no affidavits in support of the motion appear to have been filed. The reporter’s transcript discloses that at the hearing of this motion the court stated that the testimony, as far as it went, showed that the building entered by the appellant was not inhabited. The court also read from what appears to be a record of what occurred at the time the amended commitment was ordered filed, at which time the trial judge stated as follows: