People v. Brown

WARD, J. Defendant appeals from judgments coiivicting him of petty theft, as charged in two counts, and of two prior convictions, from the order denying his motion for a new trial on each count and from all orders made before and after judgment.

A demurrer to an original information was overruled. An amended information, differing from the original only in that it alleged a second prior conviction, the first for petty theft and the second, under the provisions of Penal Code section 107, for escape as a prisoner, was filed. Defendant entered a plea of not guilty to each of said counts, and standing mute when arraigned, the court entered a plea of not guilty on the two prior convictions. Motions in arrest of judgment and for a new trial were denied.

The appellant makes two contentions in support of the appeal, namely, (1) that the information fails to state a criminal offense inasmuch as the charge of petty larceny is a mere conclusion, and (2) that the evidence is insufficient to support the judgment.

The counts in the information do not designate the crime charged, petty theft, as a felony or a misdemeanor. Penal Code, section 951, providing that an information may be substantially in the form as set forth in the section, including the designation of felony or misdemeanor, should be read in conjunction with section 950, setting forth the requisite contents of an information, which do not include a designation of the offense as a felony or misdemeanor, and section 959 as to the sufficiency of an information. Whenever possible the division into which the offense falls should be alleged (Pen. Code, § 16), but when a crime may be punished by imprisonment in the state prison or by fine or imprisonment in the county jail, it is after judgment deemed a misdemeanor, [430]unless a sentence of imprisonment in the state prison has been pronounced. (Pen. Code, § 17.)

Section 666, Penal Code, provides in part: "Every person who, having been convicted of petit larceny or petit theft and having served a term therefor in any penal institution, commits any crime after such conviction, is punishable therefor as follows: ... If the subsequent conviction is for petit theft, then the person convicted of such subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison not exceeding five years.” (Pen. Code, §§ 667, 668.)

" It is established in this state, both by statute and judicial decision, that whether a crime is a misdemeanor or a felony is to be determined by the punishment; and where a crime is punishable either by incarceration in the state prison or the county jail, the sentence actually given determines the nature of the offense.” (In re Rosencrantz, 211 Cal. 749, 751 [297 Pac. 15].) In charging theft, it is sufficient to allege that the defendant unlawfully took the property of another. (Pen. Code, § 952; People v. Mason, 12 Cal. App. (2d) 84 [55 P. (2d) 249] ; People v. Myers, 206 Cal. 480 [275 Pac. 219].)