THE PEOPLE, Plaintiff and Respondent, v. JOE SERRATO et al., Defendants and Appellants.
Crim. No. 16519
In Bank.
July 25, 1973.
9 Cal. 3d 753
Appellants’ petition for a rehearing was denied August 29, 1973.
753
Stephen E. Tallent, Gary D. Stabile, Don Parris, Robert A. Miller and Keith K. Hilbig for Defendants and Appellants.
OPINION
FILES, J.*—Defendants Joe and Gloria Serrato were charged with a felony, possession of a fire bomb (
In ruling upon defendants’ motion for a new trial the court made an order purporting to modify the verdict to a conviction under
Defendants are appealing from the order granting probation, such an order being a judgment for the purpose of appeal. (
On August 30, 1970, at about 12:55 a.m. sheriff‘s deputies on patrol in East Los Angeles received a radio report that at a specified address “there was a blue station wagon with Molotov cocktails in the back seat.” They proceeded to the location and found a blue station wagon. Through a window the officers could see a paint thinner can and three bottles, at least one of which appeared to be a fire bomb, as defined in
Subsequent laboratory examination established that one of the bottles, which was glass, contained a flammable liquid with a flash point of 85 degrees Fahrenheit, and otherwise met the statutory definition of a fire bomb. The other two bottles, being plastic, did not come within the statute.
After the verdict of guilty had been returned, defendants retained new counsel, who made and argued a motion for a new trial upon the grounds of insufficiency of the evidence, errors of law in the trial, misdirection of the jury, and incompetence of trial counsel. Following oral argument of the motion, the trial court put the matter over for one week. At the resumed hearing, the court announced its ruling thus:
“Motion for new trial in this particular matter will be and is denied. In lieu thereof, the defendants Joe and Gloria Serrato will be found guilty of a violation of
Section 415 of the Penal Code .”
The court then addressed some comments to the defendants, and announced that “the sentence” would be two years of probation, subject to a fine of $125 each.
I
The first contention made by defendants here is that the trial court had no jurisdiction to convict them of a violation of
The trial court‘s action not only exceeded its statutory authority, it also violated a constitutional principle. “Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (In re Hess, supra, 45 Cal.2d at p. 175.) Since the accusatory pleading alleged nothing more than a violation of
The Attorney General argues that the conviction can be upheld upon a theory of consent, and calls attention to a colloquy which occurred in the trial court immediately after defendants’ attorney had argued in support of the motion for new trial:
“THE COURT: Very well. And thank you, counsel. May I ask you one further thing: Would you concede and be prepared to stipulate that perhaps
Section 415 of the Penal Code is a reasonably-related offense under People v. West?“MR. TALLENT: [Attorney for defendants] I would be prepared to say that‘s reasonably related, yes.
“THE COURT: Would you be prepared to accept that stipulation, if required, Mr. Watson?
“MR. WATSON: [Deputy District Attorney] Yes, your Honor.
“THE COURT: Very well.”
People v. West (1970) 3 Cal.3d 595, referred to by the trial court, offers no support for what the trial court did here. The West case deals with guilty pleas, particularly those arrived at by negotiation between the prosecution and the defense. The opinion points out that notwithstanding the rule that a defendant may not be convicted of an offense not included within the charge, his guilty plea to a “lesser offense reasonably related to the offense charged” may be valid. The opinion explains at page 612: “A defendant who knowingly and voluntarily pleads guilty or nolo contendere can hardly claim that he is unaware that he might be convicted of the offense to which he pleads; his plea demonstrates that he not only knows of the violation but is also prepared to admit each of its elements.”
Neither the holding nor the reasoning of West authorizes a trial court to convict a defendant of an uncharged offense without his consent. The record contains no showing that either the defendants or their attorneys consented to a conviction of any offense.
Since the conviction of defendants for a violation of
II
It thus becomes necessary to determine what the superior court may do after the judgment is reversed and the case is remanded for further proceedings. It is defendants’ contention that they are now entitled to a dismissal or a judgment of acquittal. They argue that the ruling of the trial court, in modifying the verdict, amounted to an implied acquittal of the offense charged,5 so that further proceedings against them on that charge are barred by the constitutional prohibitions against double jeopardy.6
It is a familiar principle that a defendant who has succeeded in having his conviction set aside impliedly waives any objection to being retried on the charge of which he was convicted. (See Forman v. United States (1960) 361 U.S. 416; People v. Tong (1909) 155 Cal. 579.)
The same rationale applies when the trier of the facts returns a verdict finding the defendant guilty of an uncharged and nonincluded offense. (See In re Hess, supra, 45 Cal.2d at p. 176; People v. Schumacher (1961) 194 Cal.App.2d 335, 340; People v. Harris (1961) 191 Cal.App.2d 754.)
The argument made by defendants here assumes that, since the trial court is authorized to reweigh the evidence in ruling upon a motion for a new trial, its order purporting to reduce the offense has the same effect as a jury verdict. This premise will not withstand analysis. By the same logic, an order of the trial court setting aside the entire verdict and granting a new trial upon the ground of insufficient evidence would be an “implied acquittal” of the entire charge.
In order to place the trial court‘s order in its proper legal context, it is necessary to examine the history and nature of the trial court‘s powers in passing upon a motion for a new trial.
Although the power of the court to grant a new trial upon the ground of insufficiency of the evidence was a part of the common law (see Estate of Bainbridge (1915) 169 Cal. 166), the power of a California trial court to hear and decide a motion for a new trial in a criminal case is strictly limited to the authority granted by
By case law it is established that the standard of review by a trial court acting under this section is different from the standard used by an appellate court under the same section. In ruling upon a motion for a new trial, the trial court is required to independently weigh the evidence, but an appellate court will not modify or set aside the verdict if there is any substantial evidence to support it. (See People v. Borchers (1958) 50 Cal.2d 321, 328-330; People v. Sheran (1957) 49 Cal.2d 101, 109.)
The distinction is not a difference in power, but in the circumstances under which it will be exercised. Thus in People v. Thomas (1945) 25 Cal.2d 880, at pages 904-905, this court said of the effect of subdivision 6: “While the power granted to the appellate court is equal to that given the trial court the circumstances which will justify its exercise in a particular court are those which are appropriate to typical functioning of that court.” (Italics in the original.)
Though the trial court, by reason of its greater familiarity with the trial proceedings, may grant a new trial under circumstances under which an appellate court would refuse to act, each court is exercising a reviewing function when it exercises its power under subdivision 6. The consequences of a ruling made under the authority of this section must necessarily be limited to those contemplated by the statute.
If the trial court, after hearing the motion under
If in lieu of granting a new trial the court decides to modify the verdict to a lesser included offense, and this modified verdict ultimately ripens into a final judgment of conviction, the conviction bars further prosecution of either the offense charged or the lesser offense. This follows because of the rule that a conviction of a lesser offense is a bar to prosecution of an-
Whether the order modifying the verdict, under
When the trial court, ruling on a motion made under subdivision 6, modifies the verdict to guilty of an uncharged offense, there may be an implied finding that the court has found that the evidence does not support the conviction of the offense charged. Such a finding by a court calls for an order granting a new trial, not an acquittal. The function of a trial court acting under
Where a jury returns a verdict of guilty of an uncharged offense, it is presumed that the jury concluded that the defendant was not guilty of the charged offense before it turned to a consideration of the lesser uncharged offense. This is the rationale of In re Hess, supra, 45 Cal.2d at page 176. The function of a jury, when it finds the evidence insufficient, is to acquit. By contrast, the function of the court, ruling on a motion for new trial is to grant a new trial if it finds the evidence insufficient. A court reviewing the verdict under
Defendants’ argument that the court‘s ruling implies acquittal is not only contrary to law, but in the context of this record, it is also illogical.
When a trial judge reduces a conviction to a lesser offense shown by the evidence, it is reasonably inferable that the judge had the belief that the evidence proved the lesser offense and not the greater. But logic does not reveal any fact-finding which would support a modification to an offense neither charged nor proved. What appears is that the trial court desired to exercise an unauthorized leniency. The fact that the court imposed probation and a fine implies the court found that the defendants
Had the court attempted to do directly what it did indirectly, that is, impose a sentence not authorized by law for the offense of which the defendants were convicted, the law is well settled that such a sentence would have been subject to judicial correction whenever the error came to the attention of the trial court or a reviewing court. (See In re Sandel (1966) 64 Cal.2d 412; People v. Massengale (1970) 10 Cal.App.3d 689, 692; People v. Orrante (1962) 201 Cal.App.2d 553, 557; In re Robinson (1956) 142 Cal.App.2d 484.)
At oral argument defendants cited cases which have discussed the res judicata effect of an order of dismissal by a trial court.9 But the court‘s power to dismiss a case, either under
III
Defendants’ alternate contention is that if they have not been acquitted, they are at least protected against more severe punishment under the rule established in People v. Henderson (1963) 60 Cal.2d 482, and followed in People v. Ali (1967) 66 Cal.2d 277; People v. Hood (1969) 1 Cal.3d 444; and In re Ferguson (1965) 233 Cal.App.2d 79.
In Henderson, defendant was convicted of first degree murder and sentenced to life imprisonment. Following reversal of that conviction, he was again tried and convicted, and the jury fixed the penalty at death. This
In the Henderson case, as in each of the cited cases which followed it, the sentence imposed after the first trial was a lawful one, within the limits of the discretion conferred by statute for the offense of which the defendant had been convicted. The judgments pronounced at the first trials were reversed because of errors having nothing to do with the sentences.
The rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.11 A few examples will illustrate the principle.
In re Sandel, supra, 64 Cal.2d 412, grew out of a petition by a prisoner who attacked his confinement on several grounds, one of them being that the Adult Authority was treating his sentence for escape as consecutive to an earlier sentence, rather than concurrent, as the trial court had pronounced it. This court held that the trial court had no power to make the sentences concurrent in view of the statute which required a consecutive sentence, that the Adult Authority had no jurisdiction to correct the mistake of the trial court, that the sentence must be corrected judicially, and that this court had jurisdiction to do so. This court then held that the sentence for escape be deemed consecutive.
In People v. Orrante, supra, 201 Cal.App.2d 553, the trial court placed defendant on probation following a conviction for murder. On an appeal by the People taken under
An analogous situation is found in the cases where a conviction based upon a negotiated guilty plea is set aside because of the trial court‘s failure to obtain constitutionally required waivers. In re Sutherland (1972) 6 Cal.3d 666 arose out of a petition for habeas corpus by a prisoner who had pleaded guilty to one of five counts. This court upheld the petitioner‘s contention that his conviction was invalid, and ordered it set aside. The opinion stated at pages 671-672: “At the time defendant pleaded guilty to one count, the prosecutor moved to dismiss the four remaining counts and his motion was granted. Since by granting relief we are in effect permitting defendant to withdraw his guilty plea, the ends of justice require that the status quo ante be restored by reviving the four dismissed counts. We therefore order all five counts restored to the superior court calendar (see People v. Daniels (1969) 71 Cal.2d 1119, 1143), to be either tried or disposed of in some other appropriate manner.”
The same kind of disposition was made when a defendant successfully attacked his guilty plea by direct appeal in People v. Kirkpatrick (1972) 7 Cal.3d 480, 487.
These cases are further illustration that a defendant who successfully attacks a judgment which is in excess of the court‘s jurisdiction is not necessarily entitled to claim the protection of that invalid judgment as an absolute limitation upon what the court may do thereafter.
In the case at bench, the order made by the trial court in ruling on the motion for a new trial, and all proceedings thereafter, were in excess of the court‘s jurisdiction, and must be set aside. If there were no other errors in the record it would be necessary to remand the case to the superior court for a new hearing on the defendants’ motion for a new trial. (See People v. Wilson, supra, 271 Cal.App.2d 60, 65.)
It is unnecessary to do so in this case because another error in the record compels this court to grant a new trial.
IV
After the attorneys had argued the case to the jury, the court commenced its instruction with some informal comments concerning the func-
“If you reach the affirmative view, of course you have got to acquit the defendants. If you think the explanation given isn‘t sufficient, you perhaps may reach a contrary conclusion.
“This is not an easy determination which you are approaching, but no decision worthy of the name is very likely to be an easy one. It‘s your society. You will, of course, be interested in conducting it as you choose.
“Do you have some statement to make, Mr. Porter?
“MR. PORTER [attorney for defendants]: Yes, your Honor. I think that the last statement of the Court is contrary to the basic principle of law, that it is up to the prosecution to prove their case, not up to the defendant to prove his case.
“THE COURT: Thank you, Mr. Porter. You may be seated.”
The court then went ahead with more comment on other subjects.
The thrust of the court‘s statement was to reverse the burden of proof on the only contested factual issue in the case. The defendants had not attempted to explain the contraband which was found in their car. Their defense was to attempt to cast doubt upon the People‘s circumstantial case by showing that other persons had been in the vicinity, and that defendants were good, law-abiding, peace-loving members of the community who would be unlikely to have committed the offense. The impact of the court‘s comment was augmented by its refusal to make a correction when defendants’ attorney called attention to the error.
It is true that the court also told the jury that its comments were “advisory only,” and the court did, later, give the customary instruction that a defendant is presumed innocent, and that the state has the burden of proving guilt beyond a reasonable doubt. The jury was also told that the failure of a defendant to testify should not enter into the deliberations in any way.
The
An error which infringes a federal constitutional right compels reversal unless the reviewing court is “able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24.) There is no way to assess the impact of the trial court‘s unfortunate comment except to note that in the context of that trial a juror could have construed it as a direction to convict. Notwithstanding the formal instructions on burden of proof, that misstatement made by the trial court and its refusal to make a correction may not be declared harmless under the Chapman standard.
The judgment is reversed.
Wright, C. J., McComb, J., Burke, J., and Sullivan, J., concurred.
MOSK, J.—I concur with points I and IV of the majority opinion but dissent from points II and III.
However beguiling the rationale of the majority opinion, its melancholy result is to penalize these defendants for a successful appeal. Had defendants graciously accepted the trial court‘s erroneous judgment of guilt of violating
In People v. Henderson (1963) 60 Cal.2d 482, 497, Chief Justice Traynor articulated the principle which should guide us here: “A defendant‘s right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life [or his liberty] to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal.” (Accord, People v. Hood (1969) 1 Cal.3d 444, 459;
The majority opinion purports to devise some neat procedural distinctions, but in effect it conflicts with substantive principles settled in the leading cases in this field, particularly Gomez v. Superior Court (1958) 50 Cal.2d 640, In re Hess (1955) 45 Cal.2d 171, and Green v. United States (1957) 355 U.S. 184. To permit a second felony trial to be conducted in the present circumstances violates the prohibition against double jeopardy. (
The first principle invoked by the majority under section II of the opinion (ante, pp. 759-760) is well accepted: that a defendant who succeeds in having his conviction set aside impliedly waives any objection to being retried on the same charge of which he was convicted. (Forman v. United States (1960) 361 U.S. 416, 425.) The key phrase, which the majority overlook, is that the waiver applies to the same charge of which he was convicted. The charge, and the only charge, of which these defendants stand convicted today, and which they have now succeeded in having set aside, is violation of
The waiver issue was considered in Green v. United States (1957) supra, 355 U.S. 184, 191-192, and disposed of in this manner for the court by Justice Black: “Nevertheless the Government contends that Green ‘waived’ his constitutional defense of former jeopardy to a second prosecution on the first degree murder charge by making a successful appeal of his improper conviction of second degree murder. We cannot accept this paradoxical contention. ‘Waiver’ is a vague term used for a great variety of purposes, good and bad, in the law. In any normal sense, however, it connotes some kind of voluntary knowing relinquishment of a right. Cf. Johnson v. Zerbst, 304 U.S. 458. When a man has been convicted of second degree murder and given a long term of imprisonment it is wholly fictional to say that he ‘chooses’ to forego his constitu-
Next, the majority recite, but in fact discard, a second fundamental principle: that where a trier of fact, jury or court, finds a defendant guilty of a lesser offense, there is an implied acquittal of the greater offense; and after such acquittal the double jeopardy prohibition of both the federal and state Constitutions bars retrial on the greater offense. But the majority, as I understand their opinion, reject that doctrine here by honing a razor-sharp distinction between a lesser but nonincluded offense, which will permit retrial on the greater charge, and a lesser included offense, which acts as a bar to that retrial. I can find no authoritative support for such an esoteric concept which, in the final analysis, would penalize the defendant for the judge‘s error.
In seeking to distinguish the treatment of lesser but nonincluded offenses, the majority repeatedly assert (ante, p. 762) that in ruling on a motion for new trial the function of the trial court “is to grant a new trial if it finds the evidence insufficient,” and the court “has no authority to acquit the defendant expressly, impliedly or inadvertently.” Obviously, however, the court does have the authority to acquit the defendant “impliedly“—the majority so recognize earlier in the opinion (ante, p. 761), where they concede that “If in lieu of granting a new trial the court decides to modify the verdict to a lesser included offense, and this modified verdict ultimately ripens into a final judgment of conviction, the conviction bars further prosecution of either the offense charged or the lesser offense. This follows because of the rule that a conviction of a lesser offense is a bar to prosecution of another offense of which the lesser is a part.” The majority imply that this rule is applicable only to cases in which the trial court reduces the conviction to a lesser included offense. No reason is given, other than the majority‘s ipse dixit, to explain why it would not be equally applicable when the court reduces the conviction to a lesser but nonincluded offense.
Perhaps in an attempt to provide such a reason, the majority state (ante, p. 762) that “When a trial judge reduces a conviction to a lesser included offense, it is reasonably inferable that the judge had a belief that the evi-
Unfortunately this result appears to be a retrogression to pre-1958 days when a comparable unnatural categorization was accepted. Prior to the decision in Gomez v. Superior Court (1958) supra, 50 Cal.2d 640, there was an anomalous distinction between a conviction of a lesser included offense and a conviction of a lesser degree of a crime which is divided into degrees. A conviction of a lesser included offense was deemed an acquittal of the greater offense (In re Hess (1955) supra, 45 Cal.2d 171, 176) but a conviction of a lesser degree would, after reversal, allow subsequent conviction of the greater degree of the same crime (People v. Keefer (1884) 65 Cal. 232, 235). In Gomez this court found the distinction to be logically indefensible and held that the double jeopardy clause precluded convicting a defendant of a higher degree of a crime after reversal of a lower-degree conviction.
The fact-finding process involved here is relatively simple. It was described long ago in People v. Gilmore (1854) 4 Cal. 376, 377: “‘The jury, in such a case, in contemplation of law, render two verdicts; the one acquitting him of the higher crime; the other convicting him of the inferior. They must first determine his guilt or innocence upon the charge made by the indictment, before proceeding to inquire whether he is guilty of an inferior crime.‘” (See also People v. Gordon (1893) 99 Cal. 227, 230.) An acquittal is equally valid whether express or implied. (Price v. Georgia (1970) 398 U.S. 323, 329.) And it is clear that the Gilmore process applies to motions for new trial considered by the court. (In re Ferguson (1965) 233 Cal.App.2d 79, 82.)
Thus before the trial court, acting as the fact-finder here, could consider defendants’ guilt of an inferior crime—whether a properly included or an inappropriate lesser offense—it necessarily first determined the defendant‘s innocence or guilt of the charge contained in the pleading. Only by an implied finding of not guilty of that charge could the judge reach the second plateau, i.e., a determination of the inferior charge of which he believed the defendants guilty. His subsequent error in stage two cannot in any way
No matter how the matter is analyzed or rationalized, and regardless of whether the trial judge scrupulously weighed the evidence or acted out of compassion, it is apparent to me beyond the slightest doubt that the judge intended to—and did—find the defendants not guilty of a felony, and guilty of a misdemeanor. That he chose the wrong misdemeanor in no way alters the validity and finality of the underlying acquittal of the felony charge. Failure to understand this point is the primary cause of the majority‘s error.
I find it impossible to read
The majority, through “a tangled variety of legal fictions” (Van Alstyne, In Gideon‘s Wake (1965) 74 Yale L.J. 606, 626), blithely sidestep the impact of Justice Traynor‘s impeccably reasoned opinion in In re Hess (1955) supra, 45 Cal.2d 171. There the defendant was charged with the felony of forcible rape; he was found guilty of contributing to the delinquency of a minor, a misdemeanor. After analysis of the nature of the crimes, this court held contributing was not a necessarily included offense, and “that the court therefore acted in excess of its jurisdiction in entering a judgment of conviction of that offense against him.” (Id. at p. 175.)
Here the majority make the identical determination: since
The United States Supreme Court has made it abundantly clear that the
Tobriner, J., concurred.