People v. Miller

PLUMMER, J. This cause is before us upon the respondent’s motion to dismiss the appeal or affirm the judgment appealed from.

The defendant was tried and convicted in the Superior Court of San Joaquin County upon an information charging him with three separate burglaries, and also charging that the appellant had been twice convicted of felonies, and upon each conviction had served a term in the state penitentiary.

The record before us shows that upon being arraigned upon the information, and asked to plead as to the three charges of burglary, the defendant made no answer. His attorney answering for him stated that the defendant pleaded not guilty.

As to the charges of having suffered two prior convictions and served two terms in the state penitentiary, it appears that the appellant’s counsel made the following statement: “Your Honor, the defendant acknowledges that he has been convicted of these other two charges, but pleads not guilty to the present charge.” The court ordered the pleas entered and the cause went to trial and resulted in the conviction of the defendant upon the three charges as above stated. Following the conviction the defendant was sentenced under the provisions of section 644 of the Penal Code providing for the punishment of habitual criminals.

It appears that the record in this cause as originally entered did not set forth correctly the manner in which the pleas just referred to were entered. Upon motion of the [243]defendant the minutes were corrected setting forth the manner of the entry of the pleas, as we have just stated. Upon the correction of the minutes, the appellant made a motion to vacate the judgment for the reason that the provisions of section 1018 of the Penal Code, which specifies that pleas of guilty only can be entered by the defendant, had been violated. This motion being denied, the defendant appeals.

Subdivision 3 of section 1237 of the Penal Code provides that an appeal may be taken from any order made after judgment affecting the substantial rights of the party. The motion to dismiss is made upon the theory that the questions presented might have been considered upon an appeal from the judgment, and therefore, under the decision of the court in the case of People v. Brattingham, 91 Cal. App. 527 [267 Pac. 120], an appeal from the order denying the defendant’s motion does not lie. The record shows, however, in these cases that an appeal from the judgment would not have presented the question tendered for our consideration. It was necessary first to make a motion to correct the minutes in order that the grounds of the motion to vacate the judgment be made to appear, just as is shown by the decision in the case of People v. Walker, 132 Cal. 137 [64 Pac. 133].