People v. Barwick

California Supreme Court Nov 19, 1936 No. Crim. 4033Published

Before: Edmonds

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Holding. The court held that a defendant is not entitled as a matter of right to a continuance upon rearraignment for a prior conviction, and that a prior conviction remains valid for enhancement purposes even if the underlying statute is subsequently repealed after the judgment has become final.

Issues

Whether a defendant is entitled to a continuance as a matter of right upon rearraignment for a prior conviction under Penal Code section 969a.
Whether the repeal of a criminal statute bars the use of a prior conviction for enhancement purposes when the judgment of conviction became final before the repeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rearraignment could serve no purpose other than to fix the time when “he must be asked whether he has suffered such prior conviction” (sec. 1025, Pen. Code), and he was not entitled as a matter of right to a continuance.”

“It is therefore clear that the appellant was properly charged with having suffered a prior conviction of a felony.”

[698]

EDMONDS, J., pro tem.

The defendant appeals from a judgment of conviction for perjury and also from an order denying a new trial, relying principally upon the asserted error of the trial court in refusing to give him time to plead to an amended information charging a prior conviction of a felony.

The appellant pleaded not guilty to an information charging him with the crime of perjury. When the case came on for trial the district attorney presented an amended information alleging the prior conviction “of the crime of possession of a still, a felony”. Appellant asked time to file a demurrer to the information as amended, and also asked for a continuance of the trial. Each of these requests was refused, but with the statement from the trial judge that if the district attorney proved the prior conviction, there might then be ground for a continuance. The appellant denied the prior conviction and the trial proceeded before a jury which found the appellant guilty of perjury and the allegation of prior conviction of a felony to be true.

Section 969a of the Penal Code provides: “Whenever it shall be discovered that a pending . . . information does not charge all prior felonies of which the defendant has been convicted . . . said information . . . shall be forthwith amended to charge such prior conviction or convictions . . . ” The purpose of this statute is plain. It requires not only an amendment forthwith, but also by a further provision that “defendant shall promptly be rearraigned on such information ... as amended and be required to plead thereto.”

Appellant takes the position that such rearraignment places a defendant in the same position as when he is arraigned upon an original information and entitles him to the time fixed by section 990 of the Penal Code, to answer it. But the appellant when rearraigned had answered the information by pleading “not guilty”. The rearraignment could serve no purpose other than to fix the time when “he must be asked whether he has suffered such prior conviction” (sec. 1025, Pen. Code), and he was not entitled as a matter of right to a continuance.

However, the procedure authorized by the sections cited is subject to the general rule that a court should

[699]

People v. Barwick

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