People v. Lavendera

California Court of Appeal May 21, 1957 No. Crim. 1307Published

Before: Mussell

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Holding. The court held that because the defendant denied the prior conviction allegation, the trial court erred by failing to require evidence of the prior conviction and failing to determine whether the prior escape involved force or violence, which is required to determine if it qualifies as a prior felony conviction under Penal Code section 4532.

Issues

Whether a trial court may find a prior conviction allegation true without evidence when the defendant has denied it.
Whether an escape conviction can be charged as a prior felony conviction if it did not involve force or violence under Penal Code section 4532.

Disposition. Affirmed in part and reversed in part; remanded for resentencing.

Quotations verified verbatim against the opinion

“There was no evidence introduced in the instant case upon which a finding could be made that the defendant had suffered a prior conviction as alleged.”

“The defendant should be resentenced after a hearing had and findings made on the questions presented by the allegation in the information respecting his prior conviction.”

[206]

MUSSELL, J.

On December 3, 1956, an information was filed in San Diego County charging that on or about the 12th day of June, 1956, the defendant, George Lavendera, did wilfully, fraudulently and feloniously make, utter, publish and pass a certain fictitious check (Pen. Code, § 476). The information also contained the following allegation:

“Prior: That before the commission of the offense herein-before set forth in this information, said defendant George Lavendera was, in the Superior Court of the State of California, in and for the county of Los Angeles, convicted of the crime of Escape from Industrial Farm, a felony, and the judgment of said court against said defendant in said connection was, on or about the 27th day of June, 1951, pronounced and rendered, and said defendant served a term of imprisonment therefor in the State Prison, at San Quentin, California, as No. A-18324.”

The defendant, who is now serving a term of imprisonment in the state prison upon a conviction in Los Angeles county for forgery committed in 1954, was returned to San Diego for trial on the San Diego information under the provisions of section 1381 of the Penal Code. On December 5, 1956, defendant appeared in the superior court in San Diego and entered a plea of guilty to the crime of uttering a fictitious check, a violation of section 476 of the Penal Code, and upon being asked by the clerk of the court whether he admitted or denied “one prior conviction of felony,” replied “Deny.” Defendant’s counsel then stated:

“Your Honor, on that the reason I advised Mr. Lavendera to deny it is a mere technicality. This prior charged is the prior felony of escape and the facts as alleged in the prior are he was an inmate at a County Honor Camp or Industrial Farm and it was a misdemeanor at the time. In 1951 the law was that an escape from a confinement for a misdemeanor is a felony, but it subsequently has been changed and the section on that is 4532 and there is now an express provision that a conviction of violation of this subdivision not by force or violence should not be charged as a prior felony, so the only question would be whether or not this particular one comes within the provisions of the amendment of 4532.”

After some further discussion between the court and counsel, the court said, “Well, I will find it to be a felony, then, having a prior conviction.” The clerk then made the following statement to the defendant:

People v. Lavendera

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MUSSELL, J.

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