People v. Grant

JEFFERSON, J. In an information filed by the District Attorney of Los Angeles County defendant was charged in two counts with petty theft after a prior conviction of a felony (burglary) in violation of Penal Code section 667. The information also charged defendant with a previous conviction of attempted robbery, a felony.

Defendant pleaded not guilty and denied the prior conviction of attempted robbery, trial was by the court, trial by jury having been duly waived by defendant and all counsel. The cause, pursuant to stipulation of defendant and counsel, was submitted to the court on the testimony contained in the transcript of the proceeding had at the preliminary hearing, and both sides reserved the right to introduce additional testimony.

At the commencement of the trial the judge directed that the record indicate that pursuant to the stipulation he had read and considered the testimony taken at the preliminary hearing. Additional evidence offered at the trial consisted of the testimony of defendant.

The judge found defendant guilty and ordered a probation report. A second judge denied probation and pronounced sentence as follows:

“Whereas, the said defendant having been duly found guilty in this court of the crime of Petty Theft With a Prior Conviction of Burglary (Sec. 667 PC), a felony, as charged in each of the Counts 1 and 2 of the information; prior conviction having been found true as alleged, to wit: Attempted Robbery, a felony, Superior Court of the State of California, Los Angeles County, August 2, 1956 and served a term in the State Prison.

[497]“It is Therefore Ordered, Adjudged and Decreed that the said defendant be punished by imprisonment in the State Prison for the term prescribed by law, on said counts.

“Sentences as to Counts 1 and 2 are ordered to run Concurrently with each other.”

Defendant appeals “from all statutory provision.” We will assume that the appeal is from the judgment pursuant to Rules on Appeal, rule 31, subdivision (b).

Defendant now contends, and respondent concedes, there was no evidence introduced to support the finding of the prior conviction for attempted robbery. Thus, defendant asserts the judgment, the order denying probation and the sentence, based upon an unsupported finding of a prior conviction of a felony, are void.