People v. d'A Philippo

PLUMMER, J. This cause is before us on an appeal by the defendant from an order of the trial court denying his motion in arrest of judgment.

The record before ns discloses that the defendant was tried in 1932 upon an indictment charging him with grand theft in seventeen counts and one count charging violation of the Corporate Securities Act. Upon this indictment the defendant was found guilty on nine of the counts contained in the indictment, and also guilty of the offense of violating the Corporate Securities Act. The indictment also charged certain prior convictions and serving sentences therefor, of which the defendant was found guilty.

Following the return by the jury of the verdict finding the defendant guilty, as just stated, the court pronounced judgment upon the defendant as an habitual criminal under the provisions of section 644 of the Penal Code. Upon a hearing had in the Supreme Court the judgment of the trial court sentencing the defendant as an habitual criminal was set aside on the ground that the trial court had no jurisdic[238]tion to sentence the defendant as an habitual criminal, and in its opinion reversing the judgment of the trial court made the following order: “It appearing, as above stated, that the trial court was without jurisdiction to adjudge defendant an habitual criminal, such judgment is hereby reversed with directions to the court below to resentence defendant, as required by law. (220 Cal. 620 [32 Pac. (2d) 962].)”

In accordance with the order of the Supreme Court just set forth, the defendant was, on the ninth day of June, 1934, returned to the county of San Joaquin, and by the superior court thereof resentenced on the nine counts charging grand theft, of which the defendant had been found guilty, and also on the one count charging violation of the Corporate Securities Act, of which the defendant had been found guilty. The judgment last pronounced sentenced the defendant to the state prison for the term provided by law, specifying in the judgment that the sentences should run' concurrently.

Upon this appeal it is contended that the Supreme Court had no jurisdiction to remand the defendant to the superior court for resentencing; that the power of the Supreme Court is limited by the provisions of section 1260 of the Penal Code to affirming, reversing or modifying the judgment originally pronounced following the verdicts finding the defendant guilty of the ten counts referred to.