People v. Loveless

PULLEN, P. J. Appellant, with another, was charged with robbery. Entering a plea of not guilty, he was duty tried and convicted on two counts of robbery of the first degree and sentenced to state prison. He now appeals from the order denying his motion for a new trial and from the judgment and sentence.

At the time of the perpetration of the robbery here in question appellant was then on parole from the state prison for a prior felony, and the first point urged by him in this appeal is that the trial court erred in postponing the commencement of the sentence for robbery until the completion of the term under which the parole was granted, appellant contending that the court- was without authority so to do. In this appellant is in error. Section 669 of the Penal Code provides:

‘ ‘ When any person is convicted- of two or more crimes, the judgment shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently or whether the imprisonment to which he is or has been sentenced upon the second or other subsequent conviction shall commence at the termination of the first term of imprisonment to which he has been sentenced, or at the termination [293]of the second or subsequent term of imprisonment to which he has been sentenced, as the case may be.”

In this case defendant having been convicted of two crimes, first, the crime for which he was on parole, and, secondly, the conviction of the robbery here in question, it became the duty of the court under the section just quoted to determine whether the sentences should be served consecutively or concurrently. In In re Daniels, 110 Cal. App. 638 [294 Pac. 735], the court, in discussing section 669 of the Penal Code, said.

“Under the provisions of that statute, if it has any application at all to a misdemeanor case, it was the duty of the justice of the peace who pronounced judgment in the misdemeanor case to have sentenced the petitioner so that his imprisonment would commence 'at the termination of the first term of imprisonment’ for the felony charge. If the justice was not aware of the fact that the prisoner was then subject to a judgment of commitment in the state prison, it would be the duty of the petitioner to inform the court of that fact. The accused may not remain silent at the time of his second sentence respecting his status as a prisoner and then claim the benefit of his own secrecy."