In re Dick

PEEK, J. Petitioner, by this application for the writ of habeas corpus, seeks relief from his confinement in San Quentin Prison under a judgment of conviction on seven counts of issuing checks without sufficient funds (Pen. Code, § 476a), with two prior felony convictions. The judgment was affirmed on appeal and is now final. (People v. Dick, 200 Cal.App.2d 424 [19 Cal.Rptr. 317].)

The only issue of substance in this collateral attack on the judgment concerns the propriety of the multiple convictions, as felonies, arising out of petitioner’s issuance of a series of checks with insufficient funds. Prior to 1955 the issuance of any one cheek or each subsequent check, regardless of the amounts, constituted violations of section 476a and each violation was a felony. In that year the section was amended by the addition of subdivision (b) to the former language, which was modified in minor respects and designated subdivision (a). (Stats. 1955, ch. 1862, § 1.) The language of subdivision (b), which qualified subdivision (a), has itself been modified in minor respects (Stats. 1957, First Ex. Sess., 1956, eh. 30, § 1; Stats. 1957, ch. 222, § 1), and at the time of the commission of the offenses herein, provided in pertinent part: “(b) However, if the total amount of all such checks, drafts, or orders that the defendant is charged with and convicted of making, drawing, or uttering does not exceed fifty dollars ($50), the offense is punishable only by imprisonment in the county jail for not more than one year. ...” Further provisions of subdivision (b) exclude its relief in instances where an accused has prior, similar convictions. The prior convictions [274]charged and found in the instant case, however, were for unrelated crimes.

The courts have had difficulty in applying subdivision (b). For instance, in People v. Kennedy, 210 Cal.App.2d 599, it is said at page 601 [26 Cal.Rptr. 696] : “While it is clear that the issuance of one or more cheeks, the total of which does not exceed $50, is a misdemeanor, triable in the justice court, and that the issuance of one check for more than $50, or several checks which add up to more than $50, is a felony, there is nothing in the applicable code sections which specifically answers the question whether the issuance of multiple checks, each for $50 or less, but which total more than $50, can constitute as many felonies as there are checks.” The court then looked to the intent of the Legislature in the enactment of the amendments to section 476a and concluded that because the punishment might have been excessive in particular applications of the original section, the amendments were intended to create a new offense of issuing multiple checks totaling $50 or less, triable as a misdemeanor, and that a single felony was contemplated by the Legislature when the accused “wrote the cheek which brought the total to more than $50.” (P. 602.) In the Kennedy ease the issuance of four fraudulent checks, each for less than $50, were charged in four separate counts and it was the third check which brought the total to over $50. The court did not affirm as to that count, however, but rather as to the fourth count, which brought the total to $85. The judgment was reversed as to the third as well as the first and second counts.