People v. Randazzo

310 P.2d 413, 48 Cal. 2d 484, 1957 Cal. LEXIS 198

• Court: California Supreme Court
• Decided: April 30, 1957
• Docket: Crim. 5996
• Status: Published

Opinions

TRAYNOR, J.

Defendant was charged by information in two counts, robbery (Pen. Code, § 211) in Count I and kidnaping for the purpose of robbery (Pen. Code, § 209) in Count II, and was found by a jury to be guilty on both counts as charged. The conviction was affirmed by the District Court of Appeal, Second Appellate District, Division One, on March 29, 1955. (People v. Randazzo, 132 Cal.App.2d 20 [281 P.2d 289].) A petition for rehearing in the District Court of Appeal was denied, a subsequent petition for hearing in this court was also denied, and the remittitur issued on April 29, 1955.

On May 10, 1956, defendant filed with the District Court of Appeal a “Motion to Recall the Remittitur, Reinstate Appeal, and Consider Supplemental or Amended Petition for Rehearing.” This motion was granted as to Count II only and the attorney general’s petition for rehearing was denied. The attorney general then petitioned for a hearing in this court. Since the appeal was already set for hearing in the District Court of Appeal, we denied the petition because of our unwillingness to interfere until the District Court of Appeal had come to a final decision.

On October 16, 1956, the District Court of Appeal issued its order reversing the judgment of conviction as to Count II, stating as its basis the same ground that it had used in granting the motion to recall the remittitur, that “the opinion of this court . . . affirming a conviction of ‘life imprisonment without possibility of parole’ for the crime of kidnaping ‘with intent and for the purpose of committing .robbery,’ under Section 209 of the Penal Code, was erroneously predicated upon said statute as it existed prior to 1951, and prior to defendant’s alleged criminal acts, whereas said statute, as amended in 1951, does not make it an offense separate from robbery, to hold or detain a person for the purpose of committing robbery. ...” A petition for rehearing in the District Court of Appeal was denied, and the case is now before us after the granting of a petition for hearing in this court.

It is contended at the outset that the order of the District Court of Appeal recalling its remittitur now constitutes a final order reinstating the appeal and that therefore, following the transfer of the cause, this court is precluded from reviewing the order recalling the remittitur and must decide the appeal on the merits. We believe, however, that an order of an appellate court recalling a remittitur and setting the appeal for further hearing is an interlocutory order that does not establish the law of the case for further proceedings therein. In this respect it is analogous to an order of a trial conrt sustaining or overruling a demurrer to the complaint, which does not become binding on it. (Berri v. Superior Court, 43 Cal.2d 856, 860 [279 P.2d 8], and cases cited.) Although the issues of fraud, mistake, or inadvertence on which the recall of a remittitur depend are distinct from the issues on the merits of the appeal, they are usually so closely related thereto that the court can determine them only by a review of its decision on the merits. (See Southwestern Inv. Corp. v. City of Los Angeles, 38 Cal.2d 623, 628-629 [241 P.2d 985]; Isenberg v. Sherman, 214 Cal. 722, 732 [7 P.2d 1006] ; Davis v. Basalt Rock Co., 114 Cal.App.2d 300, 304-310 [250 P.2d 254]; Kohle v. Sinnett, 136 Cal.App.2d 34, 38-40 [288 P.2d 139].) If the court was bound by its tentative decision that a fraud had been perpetrated upon it or that it had been inadvertent or mistaken, it would be foreclosed from the full review of the ease implicit in its order for reconsideration. Given the strong policy in favor of finality of appellate judgments after the going down of the remittitur, and the fact that the court must be free to review the grounds of its decision recalling the remittitur properly to dispose of the merits, we conclude that if it determines on further consideration that the remittitur should not have been recalled, it has the power to and must vacate its order of recall instead of redeciding the case on the merits. (See Southwestern Inv. Corp. v. City of Los Angeles, supra, 38 Cal.2d 623, 626; Chin Ott Wong v. Title Ins. & Trust Co., 91 Cal.App.2d 1, 3 [204 P.2d 387]; Ex parte Gallagher, 101 Cal. 113, 114 [35 P. 449].) Accordingly, implicit in the District Court of Appeal’s reversal of the judgment herein was its redetermination of the correctness of its recall of the remittitur, and that issue is now before this court by virtue of our order of transfer. In this respect, the fact that we denied a hearing following the order of recall is immaterial, since our denial of hearing constituted only an exercise of our discretionary power to transfer or refuse to transfer a cause to this court that is pending in a District Court of Appeal. (Cal. Const., art. VI, § 4c.) Cases holding that an order denying a motion to dismiss an appeal becomes the law of the case (see George v. Bekins Van & Storage Co., 33 Cal.2d 834, 850-851 [205 P.2d 1037], and cases cited) are not inconsistent with our conclusion herein, for in such cases the issues on the motion and merits respectively are ordinarily distinct and the policy in favor of finality of judgments is not involved. The statement in Municipal Bond Co. v. City of Riverside, 4 Cal.App.2d 442, 445 [41 P.2d 215], that the determination of issues on an order recalling a remittitur becomes the law of the ease was not necessary to the decision therein and is disapproved.

The order of the District Court of Appeal granting the motion to recall the remittitur as to Count II, ordering the judgment on that count vacated and the remittitur recalled, shows on its face that it was based on an error of law. It is settled that an error of law does not authorize the recall of a remittitur. (Southwestern Inv. Corp. v. City of Los Angeles, supra, 38 Cal.2d 623, 626, and cases cited.)

Moreover, it is clear from its first opinion that the District Court of Appeal reviewed the sufficiency of the evidence in the light of the provisions of Penal Code, section 209, as they read at the time the alleged crime was committed. Thus, both defendant and the attorney general briefed the case with reference to the code section as amended, and the District Court of Appeal quoted defendant’s contention that he was not guilty of kidnaping to commit robbery “under Section 209, Penal Code, as amended in 1951,” set forth the facts that the victim was kidnaped after the service station was robbed, and quoted with approval the argument in the attorney general’s brief that defendant was guilty under section 209 as amended on the ground that

“Where a kidnaping takes place after the actual perpetration of a robbery such kidnaping may be a kidnaping for the purpose of robbery if it may reasonably be inferred that the transportation of the victim was to effect the escape of the robber or to remove the victim to another place where he might less easily sound an alarm.

“People v. Kristy, 4 Cal.2d 504, 507-508 [50 P.2d 798].

“People v. Raucho, 8 Cal.App.2d 655, 665-666 [47 P.2d 1108].

“People v. Bean, 88 Cal.App.2d 34, 40-41 [198 P.2d 379].” (132 Cal.App.2d at p. 24.)

Defendant contends that the judgment of conviction on Count II was void and that he was denied due process of law on the ground that he was convicted of an offense unknown to the law. In support of this contention he urges that the information failed to state a public offense since it was couched in the language of section 209 prior to its amendment in 1951 and that the jury was instructed according to the law prior to the amendment.

At no time during the course of the appeal, in Ms brief on appeal, or Ms petitions for rehearing and hearing, did defendant, who was then represented by the same counsel as he is now, make any attack upon the information, nor did he point out any inaccuracy or other impropriety of the instructions that he now complains of. He merely asserted, so far as the instructions on kidnaping for the purpose of robbery were concerned, that none should have been given on that subject on the ground that the evidence would not support a conviction of that crime. No explanation is offered for Ms failure to raise these points during the appeal or before the issuance of the remittitur, or for Ms delay for more than a year after the remittitur issued in seeking to set it aside.

An information is sufficient if it charges the defendant with the commission of a public offense in words sufficient to give Mm notice of the offense of which he is accused. (People v. Roberts, 40 Cal.2d 483, 486-487 [254 P.2d 501]; Pen. Code, § 952.) Only the essential elements of the offense need be charged. (People v. Britton, 6 Cal.2d 1, 5 [56 P.2d 494].) Notice of the particular manner, means, place or circumstances of the offense is given, not by detailed pleading, but by the transcript of the evidence before the committing magistrate. (People v. Pierce, 14 Cal.2d 639, 646 [96 P.2d 784].) Surplusage, however, does not vitiate the information and may be rejected if enough remains to charge the offense. (People v. Steelik, 187 Cal. 361, 371 [203 P. 78] ; People v. Walton, 70 Cal.App.2d Supp. 862, 865 [161 P.2d 498], and cases cited.)

At the time the crime was committed Penal Code, section 209 provided: “Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps, or carries away any individual by any means whatsoever with intent to hold or detain or who holds or detains, such individual for ransom, reward or to commit extortion or to exact from relatives or friends of such person any money or valuable thing, or any person who kidnaps or carries away any individual to commit robbery, or any person who aids or abets any such act, is guilty of a felony and upon conviction thereof shall suffer death or shall be punished by imprisonment in the state prison for life without possibility of parole, at the discretion of the jury trying the same, in cases in which the person or persons subjected to such kidnaping suffers or suffer bodily harm or shall be punished by imprisonment in the state prison for life with possibility of parole in eases where such person or persons do not suffer bodily harm.”

In Count II of the amended information it was charged that “Por a further and separate cause of action, being a different offense of the same class of crimes and offenses as the charge set forth in Count I hereof, the said Donald Richard Randazzo is accused by the District Attorney of and for the County of Los Angeles, State of California, by this amended information, of the crime of Kidnaping por the Purpose op Robbery, a felony, committed as follows: That the said Donald Richard Randazzo on or about the 14th day of September 1953, at and in the County of Los Angeles, State of California, did wilfully, unlawfully and feloniously seize, confine, abduct, conceal, kidnap and carry away Ed Hallmark, an individual, with the intent to hold and detain, and who did hold and detain, said Ed Hallmark, with intent and for the purpose of committing robbery.

“That said Ed Hallmark so kidnaped was subjected to and did suffer bodily harm by said Donald Richard Randazzo.”

The part of the foregoing count that defendant did “seize, confine, abduct, conceal” and “who did hold and detain said Ed Hallmark, with intent and for the purpose of committing robbery,” are not chargeable as public offenses under Penal Code, section 209, as amended. If these parts of the count are disregarded as surplusage, however (People v. Steelik, supra, 187 Cal. 361, 371), Count II would still charge the offense of kidnaping for the purpose of robbery in violation of section 209 as amended and give defendant ample notice of the offense of which he was accused, for it would then read: “. . . that the said Donald Richard Randazzo on or about the 14th day of September, 1953, at and in the County of Los Angeles, State of California, did willfully, unlawfully and feloniously . . . kidnap and carry away Ed Hallmark, an individual, . . . with intent and for the purpose of committing robbery. ’ ’ If the offense was not stated with sufficient clarity to enable defendant to present his defense, he should have demurred on one or more of the grounds set forth in Penal Code, section 1004. (People v. Schoeller, 96 Cal.App.2d 61, 62 [214 P.2d 565]; People v. Waid, 127 Cal.App.2d 614, 616-617 [274 P.2d 217].)

Defendant’s complaint that erroneous instructions were given would not authorize the recall of the remittitur, for it is a complaint of an error of law and judicial error only, and a remittitur will not be recalled to correct judicial error or mistake of law. Any objection defendant had to the instructions should have been raised on his appeal from the judgment of conviction. (People v. Whitton, 112 Cal.App.2d 328, 332 [246 P.2d 60].)

It follows from the foregoing that the District Court of Appeal should have vacated its order recalling the remittitur and not redecided the case on the merits. Since the motion to recall the remittitur was made to the District Court of Appeal, however, the correct disposition after granting the petition for hearing is to return the proceeding to that court with appropriate directions. (Southwestern Inv. Corp. v. City of Los Angeles, supra, 38 Cal.2d 623, 630.) Accordingly, the cause is transferred to the District Court of Appeal, Second Appellate District, Division One, with directions to file its order vacating its order recalling the remittitur and to reissue the remittitur on its decision affirming the judgment.

Gibson, C. J., Schauer, J., and Spence, J., concurred.