People v. Brandon

BRAY, J. Defendant appeals from an order of the superior court setting aside a previous order entering a new judgment after vacating a prior one.

Question Presented

Was a judgment not appealed from, setting aside a judgment which after sentencing a defendant to felony imprisonment improperly suspended such judgment on condition that defendant serve one year in the county jail and make complete restitution, subject to collateral attack?

Record

Defendant pleaded guilty to a charge of violation of section 476a, Penal Code (issuing a cheek without sufficient funds). His motion for probation was denied on August 13,1953. The same day he was sentenced by Judge Twain Michelsen as follows : “It is therefore ordered, adjudged and decreed that the [98]said defendant be punished by imprisonment in the State Prison at San Quentin, California, for the term prescribed by law, said sentence suspended, on condition the defendant serve 1 year in the County Jail, and make full and complete restitution.”

Defendant served his one year and made restitution. On November 21, 1955, he moved the superior court (Judge Orla St. Clair presiding) to vacate the Judge Michelsen judgment and enter a new judgment on the ground of its ambiguity. The deputy district attorney present did not oppose the motion and stated that obviously Judge Michelsen'"s order made defendant’s crime a misdemeanor. (For this crime the code prescribes either a county jail or state prison sentence. Section 17, Penal Code, provides that such crime shall be a misdemeanor if the judgment imposes a sentence other than imprisonment in the state prison.) The court vacated the judgment and “. . . ordered, adjudged and decreed that the said Defendant be punished by imprisonment in the County Jail . . . for the term of one year, with credit to be given for time already served.” On December 18, 1957, the district attorney (at Judge Michelsen’s request) moved the court (Judge Harry Neubarth presiding) to set aside the Judge St. Clair judgment and restore the original Judge Michelsen judgment. The court then “. . . Ordered that the said judgment and sentence entered and imposed herein on November 21,1955, be and the same is hereby vacated and set aside, and that the said judgment and sentence entered and imposed herein on August 13, 1953, be and it is hereby restored of record as the final and valid judgment herein.”*