Opinion
Rehearing Denied March 16, 1931
Hearing Denied by Supreme Court March 4, 1931
In the matter of the application of Gladys Johannes for a writ of habeas corpus on behalf of Jacob Johannes prayed to be directed to the Warden of San Quentin State Prison to secure release of prisoner on ground of unlawful detention.
Writ granted.
COUNSEL
Bodkin & Lucas, of Los Angeles, for petitioner.
U.S. Webb, Atty. Gen., and Lionel Browne, Deputy Atty. Gen., for respondent.
OPINION
STURTEVANT, J.
This is an application for a writ of habeas corpus. The petitioner, the wife of Jacob I. Johannes, filed a petition in which she set forth very fully the facts. The warden of the state prison at San Quentin has filed a return in which he sets forth certified copies of the judgments under which he holds Jacob I. Johannes as prisoner. He has also filed a general demurrer to the petition. On the hearing it was stipulated that the petition stands as a traverse to the return.
Jacob I. Johannes was convicted on June 22, 1928, in Los Angeles on the charge of grand theft. The indictment pleaded several counts, and he was convicted on counts 1, 2, 3, and 5, and also on another count in another action. He made a motion for a new trial, the motion was denied, and on July 5, 1928, the trial court pronounced the judgments that are set forth in the return. On July 6, 1928, the prisoner served a notice of appeal. On July 13, 1928, the prisoner, his attorney, and the district attorney appeared in open court, and the prisoner personally waived and abandoned his right of appeal, and thereafter the trial court entered an order vacating and setting aside the judgments set forth in the return, and imposed certain amended judgments. Some of the judgments pronounced July 5, 1928, ran consecutively. Those pronounced July 13, 1928, ran concurrently. By inadvertence the clerk delivered to the sheriff, and the sheriff delivered to the prison, copies of the judgments dated July 5, 1928. On September 21, 1928, the trial court made an order that commitment based on the judgment rendered July 13, 1928, be delivered to the warden at San Quentin. Thereafter such papers were prepared and delivered, but the record does not show on what date. As to the judgments running consecutively, the board of state prison directors has fixed the term at seven years, and, as to those running concurrently, it has fixed the term at five years and one year on the concurrent judgments, and it has ordered that the prisoner be discharged on parol when he shall have served one-half of his term. No question of good conduct is presented by the pleadings or otherwise.
As this is an application for a writ of habeas corpus, it is a collateral attack on the judgments rendered in the criminal action. 13 Cal.Jur. 240; 29 C.J. 51. If two judgments have been entered in a cause, and the record— the judgment roll— is silent with reference to the reason therefor, in a collateral attack the judgment last in point of time must be deemed the true and final judgment in the case. Galvin v. Palmer, 134 Cal. 426, 66 P. 572. In a criminal action the judgment roll is defined by section 1207 of the Penal Code. By the terms of that section the indictment, a copy of the minutes of the plea or demurrer, all rulings thereon, and a copy of the judgment constitute the judgment roll. On a collateral attack, no other evidence may be received. 15 Cal.Jur. 50. We will confine our attention to those documents which are part of the judgment roll. To the return of the warden are attached the first judgments which show some of the judgments to run consecutively. The warden’s return is supplemented by a stipulated exhibit containing documents marked "amended commitments" which show all sentences to run concurrently. The commitments attached to the original return were certified by the county clerk on July 5, 1928, and those contained in the exhibit were certified by the county clerk on September 21, 1928. The prison therefore holds two sets of judgments, under which it holds the prisoner.
Under the order of the board of prison directors, as to the judgments providing that some of them will run consecutively, the term has been fixed at seven years, and the prisoner will be entitled to be paroled when the term has been one-half served; that is, January 5, 1932. Under the amended judgments, if valid, the term has been fixed at five years, and the prisoner was entitled to be paroled January 5, 1931. These facts are not controverted by the respondent, but he contends that the amended judgments are not valid. In this connection he makes the point that, when on July 6, 1928, the prisoner filed a notice of appeal, the trial court lost jurisdiction and had no power to enter the amended judgments. He cites several authorities. We need not pause to discuss each one, because of what is said in Lauchere v. Lambert (Cal.Sup.) 291 P. 412. At page 414 the court said: "The rule in this regard was stated by this court in the case of Fay v. Stubenrauch, 141 Cal. 573, 75 P. 174, as follows: ‘Nor is the right of the lower court to amend suspended or impeded by an appeal where an amendment does not affect any substantial rights of the appellant, and consists of the correction of a clerical mistake appearing upon the face of the record. It is true that the court by the appeal loses jurisdiction of the cause for the purpose of the appeal, but it does not lose jurisdiction of its records. *** Black on Judgments, § 162; Freeman on Judgments, § 73; People v. Murback, 64 Cal. 372, 30 P. 608.’ The exercise of this power on the part of the trial court has been frequently upheld by this and by the appellate tribunals ever since the decision of the early case of Wiggin v. Superior Court, 68 Cal. 398, 9 P. 646, and down to the decision by this court of the case of Robson v. Superior Court, 171 Cal. 588, 154 P. 8— citing cases. From what has been said above it is clear the amended judgment did not prejudice any right of the prisoner; therefore his case is squarely within the rule stated. Again, the point is made that the amended commitments are in fact new commitments and not amendments. The record does not show such to be the fact. When the fact does not so appear, in a collateral attack, we are bound to presume that the amendment was regular. Lauchere v. Lambert, supra. The burden of showing that the first judgments were not wrong rests on the respondents. Ex parte Williams, 89 Cal. 421, 425, 26 P. 887; Matter of Long, 30 Cal.App. 442, 447-448, 158 P. 1056.
If the amended commitments are valid, the time has arrived when the prisoner is entitled to be released on parole, as ordered by the board of state prison directors. Therefore the writ is granted, and the prisoner is discharged on parole as so ordered by the said board.
We concur: NOURSE, P.J.; SPENCE, J.