People v. Bernard

KAUS, J. By information defendant was charged with two counts of forgery. (Pen. Code, § 470.) The information also charged him with two prior felony convictions. Defendant admitted the two prior convictions and on his plea of “not guilty” to the two forgery counts, the case went to trial before a jury. After some testimony was produced, defendant waived the jury, a certain stipulation concerning further evidence was entered into and defendant was found guilty by the court. Thereupon ensued a conversation between Mr. Olson, defendant’s counsel, defendant and the court which is set forth in the footnote and which forms the [37]entire basis of this appeal.1 Arraignment for judgment was then waived, and defendant was sentenced to serve two concurrent terms in the state prison. The court also stated: “It does appear to the court that the defendant probably needs psychiatric assistance . . . the court recommends that the defendant be committed to Vacaville in serving his term. ”

On appeal defendant contends that the trial court failed to exercise its discretion to order a presentence probation report and that he did not knowingly and intelligently waive his right that the court order such a report.

As advanced, defendant’s argument is doubtful, to say the least. In concentrating on the question of the presentence probation report defendant overlooks what is really the vital error below, namely the assumption first announced by the public defender and concurred in, with displeasure, by the court, that defendant was not eligible for probation.

Under section 473 of the Penal Code forgery is punishable by imprisonment in the state prison for not less than one nor more than 14 years or by imprisonment in the county jail for [38]not more than one year. If a county jail sentence is imposed the crime is a misdemeanor. (Pen. Code, § 17.) The second paragraph of section 1203 of the Penal Code which authorizes the court to grant probation in all misdemeanor cases has been authoritatively interpreted as superseding all restrictions found in the third and fourth paragraphs of that section. (People v. Alotis, 60 Cal.2d 698, 707-708 [36 Cal.Rptr. 443, 388 P.2d 675].) We are unable to distinguish between the restriction involved in Alotis, namely the use or attempted use of a deadly weapon and the restriction involved here, the prior convictions.