People v. Smith

THE COURT.

On March 2, 1960, a jury trying defendant for rape found him guilty of the included offense of assault with intent to commit rape. During the trial a prior conviction of violation of section 245 of the Penal Code was charged. The defendant in pleading to this charge said, “I admit that I pleaded guilty to 245 ... I deny that it is a felony. ’ After motions for a new trial and probation were denied he was sentenced to the state prison for the term prescribed by law and takes this appeal from the judgment of conviction.

Appellant contends, first, that the prior conviction of a violation of section 245 of the Penal Code was a misdemeanor conviction and not a felony because he was placed on probation. He states in his opening brief “The defendant, Cloviel Smith, was, on October 9, 1950, convicted of the crime of violating Section 245 of the Penal Code of the State of California. This crime is punishable either by imprisonment in the state prison or in the county jail, or by a fine, or both. As a result of said conviction, Smith was placed on probation and successfully completed the period of probation.”

Section 17 of the Penal Code provides so far as pertinent as follows: “When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison.”

Appellant relies primarily on

In re Rosencrantz,

211 Cal. 749 [297 P. 15], a ease in which petitioner was placed on probation as was appellant in connection with his prior conviction. The

Rosencraniz

case was concerned with whether

[737]

petitioner had been convicted within the meaning of habitual criminal provisions of section 644 of the Penal Code. But in

People

v.

Banks,