Opinion
Rehearing Denied Oct. 14, 1931.
Hearing Granted by Supreme Court Oct. 30, 1931.
Appeal from Superior Court, Los Angeles County; Charles W. Fricke, Judge.
John B. Fewkes was convicted of grand theft, and, from the conviction and from an order permitting the filing of a supplemental information charging prior conviction, he appeals.
Affirmed.
See, also, 298 P. 840.
COUNSEL
Wm. J. Clark, of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People.
OPINION
CRAIG, J.
After verdict, judgment, and notice of appeal therefrom, based upon charges of grand theft, a supplemental information alleging a prior conviction was filed against the appellant. To the last-mentioned charge pleas of not guilty and once in jeopardy were entered, and a motion to strike said supplemental complaint from the files was interposed, which motion was denied. Thereafter the prior conviction was admitted, but objections were made that it had been discovered before sentence was pronounced, and that the appeal had deprived the trial court of jurisdiction to entertain the supplemental information. Each of these contentions was overruled, and it was ordered and adjudged that the original judgment and sentence be "modified by adding thereto the phrase ‘and having theretofore been convicted of a felony as charged in the supplemental information.’ " The defendant thereupon appealed from "the judgment this day pronounced by the court upon the supplemental information heretofore filed." The grounds of objection below are here urged for reversal.
A careful perusal of the record seems to reveal a substantial basis for deeming the action of the court an order or judgment affecting the rights of the defendant, rendering it appealable within the contemplation of section 1237 of the Penal Code, and that the notice of appeal was sufficient. People v. O’Brien, 4 Cal.App. 723, 89 P. 438; People v. Perez, 9 Cal.App. 265, 98 P. 870; In re Mayen, 49 Cal.App. 531, 193 P. 813; People v. Godfrey, 100 Cal.App. 91, 279 P. 1030.
The provisions of section 969a of the Penal Code which are here pertinent read as follows: "Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this state or elsewhere, said indictment or information shall be forthwith amended to charge such prior conviction or convictions, and such amendment may and shall be made upon order of the court, and no action of the grand jury (in the case of an indictment) shall be necessary. Defendant shall promptly be rearraigned on such information or indictment as amended and be required to plead thereto. Whenever after sentence, and before the sentence has expired, it shall be discovered that the indictment or information on which defendant was convicted did not charge all felonies of which defendant had theretofore been convicted, either in this state or elsewhere, it shall be the duty of the district attorney of the county wherein defendant was sentenced to cause to be filed a supplemental information setting up such prior conviction or convictions. * * * Defendant shall thereupon be arraigned upon such supplemental information and be required to plead thereto. * * * If defendant admit the prior conviction or convictions charged, the court shall resentence him to the sentence which would have been legal if such prior conviction or convictions had been admitted at the time of defendant’s conviction, and such resentence shall operate as of the date of the original sentence. * * *"
It can readily be inferred that the original information did not contain a charge of the prior conviction for a felony, that it was not amended previously to conviction and appeal in the instant case, and that the fact of prior conviction was discovered but not alleged as a basis for resentence before sentence was pronounced. It is contended that the quoted statute did not permit of the charging of a prior conviction after sentence, which had been discovered previously thereto. However, from the view which we are compelled to take, we think the discussion of this question may not be necessary nor warranted. While, as observed, an attempted amendment of the original information would have been late, it appears that, notwithstanding the appeal, the trial court still retained physical possession and control of the record, and directed that it be made a part of the proceedings before it. It has been held that in such event the superior court is vested with jurisdiction to conform its record to the facts. People v. Romero, 18 Cal. 90; People v. Murback, 64 Cal. 369, 30 P. 608; People v. O’Brien, 4 Cal.App. 723, 89 P. 438.
The question of moment, and which seems controlling, is as to whether or not the order itself constituted such compliance with the statute as to permit of its effective execution. Upon admission of the prior conviction, it became the duty of the trial court to "resentence him to the sentence which would have been legal" had the same facts been properly before it in the first instance. If the judgment be sufficiently clear to show that it was a pronouncement of sentence by the court for the offense punishable, and the penalty thereby imposed be authorized by law, the demands of the statute may be held to have been satisfied in that respect. People v. Camp, 42 Cal.App. 411, 183 P. 845. But the judgment must be definite and certain in its terms, so that the penalty may be ascertained therefrom. Ex parte Murray, 43 Cal. 455. "Sentence" is a term used to designate the final determination and order of a trial court, in the presence of the defendant and his counsel, pronouncing the judgment and directing that the same be carried into execution. Noel v. State, 17 Okl.Cr. 308, 188 P. 688; Ex parte Fisher, 95 W.Va. 397, 121 S.E. 287; Stewart v. Stewart, 93 N.J.Eq. 1, 114 A. 851. It is more than merely a judgment in favor of the people, and includes the imposition of a punishment or enforcement of a penalty. Commonwealth v. Bishoff, 13 Pa. Co. Ct. R. 503. It denotes the action of the court before which a trial has been had, declaring the consequence to a convict of the fact of guilt, ascertained by a jury or by the court. People v. Adams, 95 Mich. 541, 55 N.W. 461; Commonwealth v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699; Munkley v. Hoyt, 179 Mass. 108, 60 N.E. 413; State ex rel. Butler v. Moise, 48 La.Ann. 109, 18 So. 943, 35 L. R. A. 701. It has been defined as the judicial declaration of the consequence of the fact of guilt confessed or ascertained by verdict. People v. Jenkins, 322 Ill. 33, 152 N.E. 549. The section of the Penal Code under consideration does not permit of the modification or amendment of a judgment. Yet here the record discloses no attempt to do more than order that the original judgment be modified. That the appellant was ever "resentenced" as unquestionably intended by the statute is not contended by either party, nor can it be so held under any authority of which we are aware. However, as heretofore observed, the Superior Court cannot be said to have exceeded its jurisdiction in modifying an existing judgment in such a case.
The order and judgment from which this appeal was taken are affirmed.
We concur: WORKS, P. J.; IRA F. THOMPSON, J.