People v. Rosenberg

FORD, J.

By an information the defendant was accused of having committed four felonies. At the time of trial he withdrew his plea of not guilty and pleaded guilty to the charges contained in the first two counts. In one of those counts it was alleged that on or about April 20, 1961, the defendant had committed the crime of grand theft. (Pen. Code, § 487, subd. 1.) It was stated that the property taken was merchandise of the value of $291.15 which belonged to Claude Steen. In the other count it was charged that on or about April 20, 1961, the defendant had committed the crime of forgery of a fictitious name (Pen. Code, § 470) in that he “did willfully, unlawfully, fraudulently and feloniously make, pass, utter and publish a certain fictitious cheek and order in writing for the payment of money in the sum of Thirty Five and 00/100 Dollars . . . knowing said check to be fictitious as aforesaid, with intent then and there to cheat and defraud Claude Steen.” Probation was denied and on each count the defendant was sentenced to the state prison for the term prescribed by law, it being ordered that the

[775]

sentences were to run concurrently. The remaining two counts of the information were dismissed. The defendant has appealed from the judgment.

1

Only one contention is made by the defendant. He asserts that he could not be validly sentenced on both counts because “both violations of law arose out of but one single course of conduct directed toward dispossessing the victim of a television set.” Reliance is placed on the provisions of section 654 of the Penal Code and on

Neal

v.

State of California,

55 Cal.2d 11 [9 Cal.Rptr. 607, 357 P.2d 839], As succinctly stated in

People

v.

McFarland,

58 Cal. 2d 748 [26 Cal.Rptr. 473, 376 P.2d 449], at page 760: “The principles governing the application of section 654 were clarified by this court in