People v. Suggs

SHINN, P. J.

Defendant appeals from a judgment of conviction of forgery, five counts, which judgment recited,

inter alia,

that defendant admitted three prior felony convictions and that he had served a term of imprisonment for each of these previous offenses, to wit: (1) Forgery of government check, a 1941 conviction by a federal court in Missouri; (2) violation of Dyer Act, a 1944 conviction by a federal court in Missouri; (3) forgery, a 1949 conviction by the California Superior Court in Tuba County. In the instant matter, defendant was denied probation and was sentenced to state prison for the time prescribed by law, the sentences on Counts II through V to run concurrently with Count I and with each other.

Defendant does not contest the sufficiency of the evidence as to the five counts of forgery, hence it will serve no useful purpose to relate that evidence here. He does, however, contend that the court erred in determining that the two prior convictions in the federal courts were, in fact, convictions for felony and in holding that he was ineligible for probation. (Pen. Code, § 1203.) He requests that the sentences be set aside, that he be permitted to enter a proper plea as to the two federal convictions, and that another hearing be held to determine his right to probation.

[144]

Defendant pleaded not guilty to the forgery counts and denied the priors as alleged in the information. The cause was submitted to the court on the transcript of the preliminary hearing with each side reserving the right to put on additional evidence. After the court had read the preliminary transcript, the deputy district attorney inquired of defendant's then counsel whether he had “seen the priors” and “handed an instrument to Mr. Broady,” defendant’s attorney. Mr. Broady stated to the court that defendant wished to withdraw his denial of the priors, and, upon inquiry by the court, defendant admitted each of them. Defendant’s counsel then orally moved for probation, but informed the court that there was no possibility of probation. Permission to apply for probation was granted, application was made and a report was returned. At the hearing on probation and sentence, the court ordered the probation officer’s report to be filed, and denied probation.