In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limited within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. ( People v. Carkeek (1939), 35 Cal.App.2d 499, 505-506 [ 96 P.2d 132].) The considerations are the same whether the matters sought to be presented by motion to vacate actually were presented to the trial court prior to judgment of conviction, or whether such matters should have been but were not so presented.
The People rely upon People v. Simms (1940), 41 Cal.App.2d 466, 469 [ 107 P.2d 86], which holds that such a refusal "to provide that the defendant is not an habitual criminal" is not an appealable order. Such holding, according to the District Court of Appeal, was impelled by People v. Carkeek (1939), 35 Cal.App.2d 499, 506 [ 96 P.2d 132]. The Carkeek case, and People v. Tindall (1939), 35 Cal.App.2d 507 [ 96 P.2d 136], which follows it, did not involve motions made under subdivision (c) of section 644; such cases dismissed appeals from orders denying motions, made many months after the judgments became final, to modify such judgments by striking therefrom the determination of habitual criminality; their holdings are based upon the view that to allow an appeal from an order denying a motion to modify a final judgment, where the matter presented for review could have been considered on appeal from the judgment, would in effect nullify the limitation on the time for appeal.
If, as here assumed, the judgment is void on its face, appellant could have appealed from the order of the respondent police court denying his motion to vacate the judgment. (§ 1466, subd. 2b, Pen. Code; People v. Zolotoff, 48 Cal.App.2d 360, 364 [ 119 P.2d 745]; People v. Carkeek, 35 Cal.App.2d 499, 505 [ 96 P.2d 132].) No reason is advanced for his failure to take such appeal.
We also note defendant has appropriately made no claim of any variance between the pleading of the information and the proof at trial — a claim that would be doomed to fail. (See People v. Williams (1945) 27 Cal.2d 220, 225-226 [ 163 P.2d 692] [dictum: variance between pleading and proof of exact address immaterial]; People v. Atwood (1963) 223 Cal.App.2d 316, 324 [ 35 Cal.Rptr. 831] [charge of entering "premises" at specified location gave sufficient notice of offense, even though "premises" encompasses more than the structures listed in § 459]; People v. Carkeek (1939) 35 Cal.App.2d 499, 501-502 [ 96 P.2d 132] [charging entry of "office" sufficient, rejecting the defendant's argument that "some politicians enter [political] office with intent to commit theft therein, which entry could certainly not be called burglary"]; cf. People v. Nunez (1970) 7 Cal.App.3d 655, 663 [ 86 Cal.Rptr. 707] [more specificity desirable to establish first degree burglary].) We therefore conclude that, in ascertaining the meaning of the jury's verdict in the present circumstances, the jury instructions and prosecutor's closing argument are entitled to greater weight than the allegations of the information.
( People v. James (1957) 155 Cal.App.2d 604, 612 [ 318 P.2d 175], section 667; People v. Murray (1940) 42 Cal.App.2d 209, 217 [ 108 P.2d 748]; section 644.) In fact, People v. Carkeek (1939) 35 Cal.App.2d 499, 502 [ 96 P.2d 132] held former section 644 applied to an escapee. Effective July 1, 1977, the Legislature repealed sections 644, 667, and 3024, revised section 666, and adopted section 667.5. New section 666 became an amalgam of former sections 666 and 667.
If this be the fact, for the reasons heretofore noted, the court had no jurisdiction to entertain the motion, and the purported appeal from the order denying such would be ineffective. ( People v. Behrmann, supra, 34 Cal.2d 459, 462; People v. Zolotoff, 48 Cal.App.2d 360, 363 [ 119 P.2d 745]; People v. Carkeek, 35 Cal.App.2d 499, 505 [ 96 P.2d 132].) However, as a general rule, a motion to vacate a judgment, in effect, is in the nature of an application for a writ of error coram nobis whether or not it is so designated.
Allowance of an appeal from an order denying a motion to vacate would virtually give the defendant two appeals from the same ruling and, since there is no time limit within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. ( People v. Carkeek, 35 Cal.App.2d 499, 505-506 [ 96 P.2d 132].) [5] Were defendant's application in the court below viewed as a petition for writ of error coram nobis the relief would still be unavailable.
The errors, if any, are not such as to render the judgment void. (See In re Bouchard, 38 Cal.App. 441, 443 [ 176 P. 692]; Ex parte Gibson, 31 Cal. 619, 627 [91 Am.Dec. 546]; People v. Carkeek, 35 Cal.App.2d 499, 505 [ 96 P.2d 132].) Appellant places particular reliance upon People v. Walker, 132 Cal. 137 [ 64 P. 133], in which it was held that defendant was entitled to appeal from the order denying his motion to correct the minutes and vacate the judgment for the reason that an appeal from the judgment would not have brought up a record showing the error of which defendant complained.
[2] ". . . It is well settled that the service of a `term' within the meaning of section 644 of the Penal Code includes part of a term as well as a full term. In People v. Carkeek, 35 Cal.App.2d 499 [ 96 P.2d 132], it is stated (p. 502): `. . . it is urged that the Habitual Criminal Act (section 644 of the Penal Code), provides not only that the prior conviction must be proved, but that the defendant served a "term" . . . While appellant plead guilty to having been convicted and having served a term upon each of the prior convictions charged, he admitted later, in answer to questions propounded by the trial court, that he escaped from one of the prisons. He urges, therefore, that he did not actually serve a "term."
Such allegation and proof may be made even though the accused has been pardoned ( People v. Biggs, 9 Cal.2d 508, 510 [ 71 P.2d 214, 116 A.L.R. 205]) or has committed the second crime while on parole ( In re Brady, 5 Cal.2d 224, 225 [ 53 P.2d 945]) and it is not essential that the defendant must have served the full term of his sentence under the prior conviction. ( People v. Carkeek, 35 Cal.App.2d 499, 501 [ 96 P.2d 132]; Spivey v. McGilvray, 29 Cal.App.2d 357, 360 [ 84 P.2d 256]; People v. Martin, 78 Cal.App.2d 340, 342 [ 177 P.2d 813].) [5] Not only were the prior convictions alleged but appellants severally pleaded the truth of such allegations and that was sufficient to support the judgments of habitual criminality on the part of each of them.