People v. Moranda

[425]

TAYLOR, J.

In this appeal from a judgment of conviction finding him guilty of petty theft (Pen. Code, § 484) with a prior felony conviction (Pen. Code, § 667),

1

appellant, Harold Charles Moranda, in pro per., contends that he was erroneously convicted of a felony.

The clerk’s transcript indicates that on February 28, 1963, an information was filed, charging the appellant with a felony, petty theft in violation of section 484 of the Penal Code, and a prior felony conviction and service of term. The information did not mention section 667 of the Penal Code. Appellant was arraigned and counsel appointed to represent him. He entered a plea of guilty to the petty theft charge and admitted serving a prison term for a prior felony conviction, second degree burglary. Thereafter, the court rendered its judgment finding appellant guilty of a felony and sentenced the appellant for the time prescribed by law.

2

An examination of the record below discloses no prejudicial error.

Appellant contends that he was erroneously convicted of a felony as petty theft is only a misdemeanor.

3

Section 667 of the Penal Code makes petty theft a felony when the accused has been previously convicted of a felony and served a term therefor. The information in this case charged the appellant with a felony, violation of section 484 of the Penal Code and a prior conviction. Appellant argues that because section 667 was not specifically mentioned in the information, he was not apprised of the fact that he was being charged with a felony.

A defect in criminal proceedings, to constitute prejudicial error, must affect the substantial rights of the accused. (Cal.Const., art. VI, §4%; Pen. Code, § 1258.) The failure to allege a violation of section 667 is not a prejudicial error when the precise elements of the offense

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