People v. Remme

BROWN, P. J. Defendant burglarized an acquaintance’s house and took away an automobile and other items. He was convicted of burglary, grand theft, and petty theft.The trial court sentenced him to the terms prescribed by law for the first two offenses,felonies, and to 140 days imprisonment in the county jail for the petty theft, a misdemeaor, crediting him for this sentence with 140 days already served. He filed, in propria persona, a notice of appeal. We reversed these convictions(People v. Remme, nonpublished opinion, District Court of Appeal, Fourth District, Crim. No. 1681, March 26, 1965) solely on technical requirements established by Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], and People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], after the trial. On retrial, defendant was charged only with the burglary and grand theft and a jury again convicted him. He appeals from this judgment, contending that since he had been convicted and sentenced for the petty theft, section 654 of the Penal Code bars his further punishment for the burglary and grand theft.

Our own review of defendant’s second appeal discloses that in his first appeal, defendant filed notice of appeal from his convictions for burglary and grand theft only. He did not appeal the petty theft conviction, even though the briefs of the parties would lead the court to conclude the appeal was from the entire judgment. Nevertheless, it was not improper in the first appeal for this court to have dealt with the entire judgment as being unseverable for the following reason: All three offenses comprised an indivisible course of conduct, and “. . . where the parts of a judgment appealed from are so connected with the remainder that appeal from a part only, affects the other parts or involves a consideration of the whole, the reviewing court will consider and act upon the entire judgment when necessary to accomplish justice.” (Everly Enterprises, Inc. v. Altman, 54 Cal.2d 761, 765 [8 Cal.Rptr. 455, 356 P.2d 199].) In accord: (Hamasaki v. Flotho, 39 Cal.2d 602, 609 [248 P.2d 910]; American Enterprise, Inc. v. Van Winkle, 39 Cal.2d 210, 217-218 [246 P.2d 935]; Estate of Murphey, 7 Cal.2d 712, 717 [62 P.2d 374]; Milo v. Prior, 210 Cal. 569, 571 [292 P. 647] ; Whalen v. Smith, 163 Cal. 360, 362 [125 P. 904, Ann.Cas. 1913E 1319].; see also Rediker v. Bediker, 35 Cal.2d 796, 798 [221 P.2d 1, 20 A.L.R. 2d 1152].)

Since the entire judgment was reversed it follows that the sentencing for petty theft was included in the reversal. Noth[621]ing remained of such sentence; it became nonexistent. Therefore, it is not available to defendant as a bar to punishment when, in the second trial, he was convicted of burglary and grand theft.