People v. Scott

BROWN (H. C.), J.

This is an appeal from a judgment of conviction after trial by jury on two counts of burglary and two prior felony convictions. The facts are not disputed.

The evidence disclosed that the appellant was arrested after making purchases of clothing at the Dorca Sportswear Shop and the Kaldor Knit Shop in Berkeley. Bach purchase was under $50 and was made with a Bank of America credit card which had been stolen from Bertha Davis to whom it had been issued. Appellant, without the authorization of Bertha Davis, used the card and signed Bertha Davis’ name on the sales slips. The purchases with the credit card were conceded by appellant, but she offered the excuse that a friend (not Bertha Davis) had given the card to her with directions to use it. The friend did not appear at the trial.

Appellant was charged in three counts of felony: Count one, a violation of section 484a, subdivision (b) (6) of the Penal Code, involving misuse of a credit card. Count two, burglary, for entry of Dorca Sportswear “with intent to commit theft.” Count three, burglary, for entry of Kaldor’s Knit Shop “with intent to commit theft.” She was also charged with three prior felony convictions.

Appellant pleaded not guilty to the credit card violation and burglary charges. She admitted one prior felony conviction but denied the other two prior felony charges and maintained that the records disclose that the offenses were in fact misdemeanors. (Since the taking of this appeal it has been established that the so-called felonies were, in fact, misdemeanors.) The jury found appellant guilty of the credit card and burglary charges and also found that appellant was guilty of the two alleged prior felonies.

The court, on its own motion at the time of sentencing, dismissed count one (credit card violation) and sentenced appellant to one year in the county jail as condition to probation on each burglary count; the sentences to run concurrently.

Although appellant alleges numerous errors, the principal question is: Was the appellant subject to prosecution under the burglary statute, section 459 of the Penal Code, where the acts complained of constitute offenses speeifi

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