People v. Gonzales

HOUSER, J.

-Defendant pleaded guilty to a. charge of unlawful possession of intoxicating liquor, as well as to theretofore having been found guilty of three several offenses of the same character. Thereupon she was sentenced to serve one year in the county jail and to pay a fine of $500, with the payment of $250 of such fine being “suspended.” She appeals from the judgment.

The first point made by appellant is that:

“The judgment of the court is excessive and therefore void for the reason that a conviction under a city ordinance cannot be pleaded in aggravation of punishment in a state court in a prosecution under the Wright Act.”

[247]

In connection therewith, appellant directs attention to what she claims occurred at the time sentence was im, , to wit, that her counsel requested the judge of the trial court -to take judicial notice of the fact that each of the several prior convictions of defendant was for a violation of a local city ordinance and consequently that a conviction therefor might not be pleaded for violation of a state statute. The record on appeal, however, fails to disclose the facts to which appellant refers. Nor does the language appearing in the information against defendant support her contention. Bach of the several allegations as to two of the charges in the information was to the effect that at a specified time, in the police court of the city of San Bernardino, the defendant was convicted of the commission of the named offense; and as to the third of such charges, in the justice court of San Bernardino township, she likewise had been so convicted. The record is silent with reference to the designation of any particular' statute or ordinance under the provisions of which either or any of such convictions of defendant was had. As in substance is stated in

Crouch

v.

H. L. Miller & Co.,

169 Cal. 341, 344 [146 Pac. 880], where nothing appears in the record as to what was done, it will be presumed in favor of the judgment that what ought to have been done was not only done, but rightly done; and that when the record affirmatively shows what transpired, it will not be presumed that something different was done. In 15 Cal. Jur., page 68, where the authorities are cited, the rule is announced that, even though the existence of a jurisdictional fact be not affirmed on the record, such fact will be presumed. It thus becomes clear that this court is powerless to supply the deficiency, if any, existing in the record herein and thus make it coincide with appellant’s statement of the facts either as to what occurred at the time judgment was pronounced in the superior court against defendant, or as to the particular statute or ordinance under the provisions of which either of the former judgments against defendant was rendered. In other words, because of the rule heretofore stated, and because every intendment favors the validity of the judgment, it must be assumed that the record as it now stands is correct. Hence it follows that assuming, without deciding, that in