People v. Hurley

ASHBURN, J.

Defendant appeals from judgment of guilty of possession of marijuana in violation of section 11500, Health and Safety Code (Appeal No. 6012) and from judgment of guilty of violation of section 11714, Health and Safety Code

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with prior conviction of section 11500 thereof (Appeal No. 6013). No error is claimed in Number 6012 and

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the only point made in support of reversal in Number 6013 is that defendant was sentenced to a ten-year term instead of a five-year term upon the basis of the conviction in 6012 of said violation of section 11500 which was not then final and was later made the subject of an appeal.

After a nonjury trial defendant was convicted of violation of section 11500 on April 12, 1957, and the matter was continued for a probation officer’s report. It again came on for hearing on June 11, 1957, at which time probation was denied and defendant was sentenced to state prison for the term prescribed by law.

Meantime, on May 3,1957, defendant had been charged with violation of section 11714 in two counts which specified the furnishing of a narcotic to two different minors. On May 16, before the magistrate, he pleaded guilty to count 2, count 1 was dismissed and the cause certified to the superior court. Thereupon an amended complaint was filed charging the former conviction of April 12, 1957, under section 11500, which charge defendant denied. Further proceedings on that issue were continued and came on for hearing on June 11, 1957; the court found the charge to be true and sentenced defendant to prison for the term prescribed by law, which, as shown by the quotation in footnote 1,

supra,

is 10 years because of the previous conviction and would have been five years in the absence thereof.

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On June 18, 1957, appellant filed his notice of appeal.

Counsel for appellant says: “It is appellant’s contention that a defendant may not be sentenced on two offenses at the same time and have one offense treated as a prior offense within the provisions of such section.” Again: “It is the contention of the defendant that the theory and reason for the increased punishment to subsequent offenders is that defendants have demonstrated that they have not profited by the lessons of the prior punishment, nor benefited by the penal rehabilitation programs, and therefore additional penalties should be invoked. In the case at bar the defendant has had no penalty and has had