People v. King

McKee, J. The defendant was convicted of petit larceny upon an information which charged him with the commission of grand larceny, and with having suffered a previous conviction for felony. At his arraignment he admitted that the charge of a previous conviction was true; and upon the verdict rendered against him and his admission of the former conviction the court sentenced him to imprisonment in the State prison for a term of five years.

The sentence was imposed under subdivision 3, section 666, of the Penal Code. By the provisions of that section, when a defendant in a criminal case is convicted of grand or petit larceny, after having suffered a previous conviction for felony, the court in which the conviction is had is authorized to punish him by imprisonment in the State prison not exceeding five years. A conviction for petit larceny and a former conviction for grand larceny, therefore, subjects a party to be punished as for a felony. Such legislation has been held constitutional. (Ex parte Gutierrez, 45 Cal. 429; Plumbly v. Comm. 2 Met. 413.) The increased punishment is not regarded as a part of [339]the penal consequences of the first offense, but applies exclusively to the last as aggravated by the repetition of the same offense.

But although the information against the defendant contained a charge of a previous conviction of grand larceny, there was not, at the time the information was made and filed, or when the defendant was arraigned upon it, any existing law, which required the court to ask the defendant whether he had suffered such a previous conviction, and. permitted him to answer that he had or had not.

Before April 9, 1880, there was a section of the Penal Code which provided that, “in charging in an indictment, the fact of a previous conviction of a felony .... it is sufficient to state: ‘That the defendant, before the commission of the offense charged in this indictment, Avas (giving the title of the court, etc.) convicted of a felony.’ ” . . . . (§969, Pen. Code, 1873-74.) There Avas also a section Avliich provided as follows: “When a defendant, who is charged in the indictment' Avith having suffered a preAÚous conviction, pleads either guilty or not guilty of the offense for Avhich he is indicted, he must be asked AAdiether he has suffered such previous conviction. If he answer that he has, his ansA\\rer shall be entered by the clerk in the minutes of the court, and shall, unless AvithdraAvn by consent of the court, bo conclusÍAre of the fact of having suffered such previous conviction in all subsequent proceedings. If he ansAver that he has not, his ansAver shall be entered by the clerk in the minutes of the court, and the question Avhether or not he has suffered such previous conviction shall be tried by the jury which tries the issue upon the plea of ‘ not guilty,’ or in a case of a plea of ‘guilty,’ by a jury impaneled for that purpose. The refusal of the defendant to ansAver is equivalent to a denial that he has suffered such previous conviction. In case the defendant pleads ‘not guilty,’ and ansAvers that he has suffered the previous"conviction, the charge of previous conviction shall not be read to the jury, nor alluded to on the trial.” (§ 1025, Penal Code, 1873-74.)