People v. Heinold

California Court of Appeal Apr 21, 1971 No. Crim. No. 4429Published

Before: Coughlin

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Holding. The trial court lacked jurisdiction to vacate a judgment and grant probation because the execution of the defendant's sentence had already begun upon his delivery to federal authorities under a concurrent sentencing order.

Issues

Did the trial court have jurisdiction to vacate a judgment and grant probation after the defendant had begun serving a concurrent sentence in a federal prison?
Did the execution of the defendant's state sentence commence upon his return to federal prison under the provisions of Penal Code section 2900?

Disposition. reversed

Quotations verified verbatim against the opinion

“The record in the case at bench dictates the conclusion execution of defendant’s sentence had begun.”

“In the event execution of the sentence has begun the court loses jurisdiction to change the judgment.”

“The purpose of Penal Code section 2900 is to give effect to the provisions of a judgment directing a sentence imposed by a court of this state shall run concurrently with a sentence theretofore imposed by a court of another jurisdiction”

[961]Opinion

COUGHLIN, J. The People appeal from an order vacating a judgment sentencing defendant to the state prison and placing him on probation.

On August 22, 1969, defendant entered a plea of guilty to the offense of selling marijuana; waived probation; asked that judgment be pronounced forthwith; and was sentenced to imprisonment in the state prison. At this time defendant was serving a sentence in a federal prison for a federal offense. The minutes of the court at the time of pronouncement of judgment contained the following:

. . It is the Judgment of the Court that the Defendant be sentenced to the State Prison for the term prescribed by law pursuant to Section 1202B Penal Code. Sentence ordered to run concurrently with any Federal sentence under provisions of Section 2900 Penal Code. . . . Defendant remanded to the custody of the Federal authorities for confinement in a Federal prison.”

On the same date, i.e., August 22, 1969, an abstract of judgment was issued as provided by Penal Code section 1213.5 which contained the following:

“It Is Therefore Ordered, Adjudged and Decreed that the said defendant be punished by imprisonment in the State Prison of the State of California for the term provided by law, and that he be remanded to the Sheriff of the County of Orange and by him delivered to the Director of Corrections of the State of California at the place hereinafter designated.

“It is ordered that sentences shall be served ... in respect to any prior incompleted sentence(s) as follows: Concurrent under Sec. 2900 PC.

“To the Sheriff of the County of Orange and to the Director of Corrections:

“Pursuant to the aforesaid judgment, this is to command you, the said Sheriff, to deliver the above-named defendant into the custody of the Director of Corrections ... at your earliest convenience.”

The abstract of judgment was certified by the clerk of the court and also by the judge who presided over the case. The sheriff acknowledged receipt thereof on August 25, 1969.

On August 25, 1970, defendant, by a petition in writing, moved the trial court to vacate the sentence imposed on August 22, 1969, and to impose a new and different sentence. The reason for this petition was the fact the federal authorities indicated their intention to parole him provided a de

People v. Heinold

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