People v. Pera , 36 Cal. App. 292 ( 1918 )

The attorney-general, in a petition for a rehearing of this case, has called our attention to two cases, People v. Brown,113 Cal. 35, [45 P. 181], and People v. Kerr, 15 Cal.App. 273, [114 P. 584], not cited in the original briefs, which bear upon the question whether the court in this case exceeded its jurisdiction in adjudging that the defendant, upon defaulting in the payment of the fine imposed, should be imprisoned for one day for every two dollars of said fine until the same is satisfied. It will be observed that, in the original opinion, we construed the broad language used in the case of Ex parte Rosenheim, 83 Cal. 388, [23 P. 372], as declaring or implying that section 1205 of the Penal Code had no application whatever to a case where a term of imprisonment and also a fine were imposed. The cases above mentioned do hot appear to give that construction to said section. They seem to hold that the Rosenheim case merely meant to hold that in a case where both a fine and an imprisonment are authorized to be imposed and a sentence of imprisonment is adjudged, the court, while having authority also to impose a fine, is without legal power or authority, in case the fine be not paid by the defendant, to impose the alternative of imprisonment at the rate of one day for every two dollars of such fine until the same is so satisfied. We say that this appears to be the construction the Brown and Kerr cases, supra, put upon the language and the decision in the Rosenheim case. We have, upon careful reconsideration of the Rosenheim case, concluded that its language is reasonably susceptible of that construction, and that, as so construed, it gives the true meaning of section 1205 of the Penal Code. At any rate, it is very clear that the Brown and Kerr cases, which were decided after the Rosenheim case, hold that, in cases in which the law authorizes the imposition of both a fine and an imprisonment the defendant may be subjected to both a fine and an imprisonment, but that in such case the court has no authority to impose the alternative of imprisonment to satisfy the fine if the defendant defaults in the payment thereof. That part of the judgment imposing the fine nevertheless, however, constitutes a lien upon the defendant's realty in like manner as a judgment for money rendered in a civil action, and its payment may be enforced by due proceedings. (Pen. Code, sec. 1206; People v. Brown, 113 Cal. 35, [45 P. 181].)

It follows that the judgment in this case imposing an imprisonment of thirty days in the county jail and also a fine of six hundred dollars, except that part thereof providing that in default of the payment of the fine the defendant shall be imprisoned until the same be satisfied, is perfectly valid.

The point herein discussed constitutes the sole and only ground upon which a rehearing is asked by the attorney-general. In view of that fact and of the further fact that we are now firmly convinced that our former judgment in the respect herein considered is erroneous, and, inasmuch as the result sought to be obtained by the application for a rehearing may as well be brought about by a modification of the judgment heretofore rendered by this court herein, we can perceive no good reason for reopening the case for the further consideration of said point, and so defer the final disposition of the case. Of course, it will not be questioned that this court, before its judgments become final or before the causes in which such judgments are rendered are transferred to the supreme court upon petition, still has the right or jurisdiction to modify its judgments or, indeed, set them aside, if for good reasons such a course is required.

Accordingly, the petition for a rehearing is denied; but the former judgment rendered herein by this court is hereby modified so as to read as follows: "That portion of the judgment appealed from by the defendant providing that the defendant, in default of the payment of the fine imposed, shall be 'imprisoned in the Merced County jail for a term not exceeding one day for each two dollars of such fine so remaining unpaid,' being void, is reversed. The remaining portion of the judgment appealed from and the order denying the defendant a new trial are affirmed. There is no appeal from an order denying a motion in arrest of judgment, and the pretended appeal from said order is, therefore, dismissed."

Chipman, P. J., and Burnett, J., concurred.