People v. Ratner

67 Cal.App.2d Supp. 902 (1944) THE PEOPLE, Appellant,

v.

ABRAHAM S. RATNER, Respondent.

California Court of Appeals.

Nov. 30, 1944. Ray L. Chesebro, City Attorney, Donald M. Redwine, Assistant City Attorney, and John L. Bland, Deputy City Attorney, for Appellant.

Stanley Moffatt for Respondent.

BISHOP, J.

This is an appeal by the People from an order dismissing a complaint which declared, first, that the defendant, [67 Cal.App.2d Supp. 903] on or about the 8th day of October, 1943, had violated section 476 of the Vehicle Code by not stopping his vehicle when he was faced by a traffic control signal which told him to stop, and, second, that within the year the defendant had been convicted of disobeying that same section. The reason given by the trial court for its order of dismissal, and the only argument presented in its defense on this appeal, is that the reference to the prior conviction rendered the complaint defective. We have concluded that it was proper to plead the prior conviction and that the complaint should not have been dismissed.

The act alleged to have been committed by the defendant is made a misdemeanor by section 450 of the Vehicle Code. It is punishable, according to section 762 of the same code, by a fine not exceeding fifty dollars [$50] or by imprisonment in the county jail for not exceeding five days," if a first offense, "and for a second conviction within a period of one year by a fine of not exceeding one hundred dollars [$100] or by imprisonment in the county jail for not exceeding ten days or by both such fine and imprisonment." Neither in the Vehicle Code nor elsewhere in the statutory law of this state, so far as we are aware, is there any direction respecting either the necessity for, or the propriety of, pleading the prior conviction. We must look, therefore, to the principles of the common law for our answer. (In re Hudspeth (1929), 100 Cal.App. 478 [280 P. 179].)"

[1] We find that by the great weight of authority the rule i established that where it is desired to charge the defendant with an offense which is punishable more severely because of a prior conviction, the fact of the prior conviction is an essential element of the pleading by which the offense is charged. This statement appears in Massey v. United States (C.C.A. 8th Circuit, 1922), 281 F. 293, 297: "Statutes providing for greater punishment of second or subsequent offenses by the same person have long been in force in this country and in England (Graham v. West Virginia, 224 U.S. 616, 623, 32 S.Ct. 583, 56 L.Ed. 917), and are to be found in the legislation of nearly every state in the Union. It is the established rule, under such statutes, unless the statute designates a different mode of procedure, that, if the prosecutor desires to invoke the severer punishment provided as to second or subsequent offenders, the indictment or information must allege the fact of the prior conviction, and the allegation [67 Cal.App.2d Supp. 904] of such conviction must be proved in the trial to the jury." Some forty-five authorities were cited in support of the statement and more may be found in State v. Scheminisky (1918), 31 Idaho 504 [174 P. 611, 612], and the annotations in 58 A.L.R. 64, 82 A.L.R. 366, 116 A.L.R. 229, 132 A.L.R. 107, 139 A.L.R. 689.