People v. Russell

NOURSE, P. J. On October 17, 1932, the appellant was sentenced to the state penitentiary at Folsom following a conviction on two separate violations of section 288 of the Penal Code and a finding of two prior convictions of felony in a foreign state. On his appeal the judgment and the order denying him a new trial were affirmed. (People v. Russell, 131 Cal. App. 646 [21 Pac. (2d) 959].)

On February 19, 1934, the appellant filed a motion to vacate the judgment on three grounds — that he was not given an opportunity to secure counsel, that he was not confronted with the witnesses regarding his prior convictions, and that the judgment does not affirmatively declare that he served the terms imposed by these prior convictions. The second point was the only one urged on the former appeal and this was determined against appellant. The third point is one which might arise when the prison board fixes appellant’s term of imprisonment under section 1168 of the Penal Code. Here the judgment was in harmony with section 1202a of that code in directing the appellant to be taken to the state prison at Folsom.

The third ground assigned in the motion to vacate is plainly frivolous. It was based upon asserted errors occurring during the trial and particularly that, having become dissatisfied with his counsel, the defendant moved in open court to be relieved of counsel and to be permitted to conduct his own defense; that his motion was granted and that he thereupon requested and was granted leave to amend his answer and to plead “not guilty by reason of insanity”; that, because of this plea, the trial court should have assumed that he was incompetent and should have refused to permit him to conduct his own defense. The obvious answer to the point is that the plea merely raised the question of insanity at the time the offenses were committed; there was no claim of present insanity.

[419]But, in addition, the trial court was without jurisdiction to grant the motion because the grounds assigned were all matters which could have been raised on the appeal from the judgment. It is only when a judgment is void on its face (or for reasons specified in section 473 of the Code of Civil Procedure) that a motion can be entertained to set it aside after the time for new trial and appeal has passed. (People v. Davis, 143 Cal. 673, 675 [77 Pac. 651] ; In re Sackett, 53 Cal. App. 592, 597 [200 Pac. 742]; Worth v. Emerson, 3 Cal. App. 158, 160 [85 Pac. 664]; 14 Cal. Jur., p. 1022.)