People v. Mason

MUSSELL, J.

On December 18, 1951, appellant entered a plea of guilty in the Municipal Court in San Diego to the crime of issuing a check without sufficient funds in violation of Penal Code, section 476a. The matter was certified to the superior court (Case No. 169855) and appellant was granted probation. Subsequently, this order was vacated and on March 31, 1952, it was ordered that appellant be sentenced to the state’s prison for the term prescribed by law, the sentence to run concurrently with relation to the sentence imposed by the said superior court on the same date in action Number 171444.

In San Diego Superior Court Number 171444 appellant was also charged with the crime of issuing a check without sufficient funds, a felony, in violation of section 476a of the Penal Code and on March 6, 1952, he entered a plea of guilty in the municipal court to said crime. This matter was also certified to the superior court, where, on March 31, 1952, appellant, having admitted a prior conviction as alleged in the amended complaint, was sentenced to the state’s prison for the term prescribed by law. It was further ordered that this sentence run concurrently with the sentence imposed in said superior court action Number 169855. No appeal was taken in either of said superior court actions. On January 7, 1958, appellant filed in said actions a “Petition to Modify Judgment” in which he contends that the amendment in 1955 to section 476a of the Penal Code affected his status of imprisonment and rendered the crimes committed by him in 1951 and 1952 mere misdemeanors, since the total of the two checks involved amounted to less than the sum of $50. This petition was denied and this appeal is from the order denying it.

Appellant was not entitled to be sentenced as a first

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offender in superior court action Number 171444 because of Ms previous conviction. (Pen. Code, § 476a, as amended.) Moreover, the amendment to said section has no retroactive application to crimes committed prior thereto and to judgments which have become final. Government Code, section 9608, provides that termination or suspension of any law creating a criminal offense does not constitute a bar to punishment of an act already committed in violation of the law so terminated or suspended unless the intention to bar such punishment is expressly declared by an applicable provision of law. No part of the Penal Code is retroactive unless expressly so declared (Pen. Code, § 3), and there is no such declaration indicated in section 476a of said code, as amended.