People v. McGraw

FOURT, J. This is an appeal from a judgment which in effect revoked an order granting probation, and reinstated the original sentence.

In an information filed in Los Angeles County on July 28, 1958, the defendant was charged with two counts of issuing checks with insufficient funds in violation of section 476a, Penal Code. The information also charged and set forth six prior felony convictions.

The defendant pleaded guilty to Count 1 of the information and admitted the first charged prior conviction. The minute entry recites in part: . Other prior convictions denied and jury waived on issue re second, third, fourth and fifth prior convictions.” Nothing is mentioned with reference to the sixth prior conviction.

The determination of the truth of the charges with reference to the priors was to be made at the time of sentence. Defendant made an application for probation and the judge permitted him to so apply although obviously the defendant was, at that time, not legally eligible to do so.

[885]A later minute entry refers to “the four prior convictions.” (Emphasis added.) The probation officer filed a report which set forth, among other things, that the defendant was above average intelligence, that he had used 23 aliases, had been in prison many times, was a repeated parole violator and that he had been arrested for the offense in question 13 days following his release from his last incarceration. The report further pointed out that when the defendant was interviewed by a representative of the probation department 35 years ago as a result of another forgery conviction, defendant appeared to be a “genius in the art of forgery” and that he should be “severely dealt with.” The report also called attention to the fact that 23 years ago the defendant was charged with five counts of forgery and that the opinion of the probation officer was the same then as it had been previously. It was recommended in the present case that probation be denied.

On September 18, 1958, the matter came on to be heard. The defendant was represented by counsel. The minute entry of that day’s proceeding recites, “All priors pending found true as alleged.” Thereafter the entry recites only five of the six prior convictions so charged. Probation was denied and defendant was sentenced to the state prison for the time prescribed by law. Count 2 of the information was dismissed.