People v. Cowins

FILES, P. J. Under a single ease number we have separate appeals from two convictions for petty theft committed after a prior conviction of petty theft (Pen. Code, § 666).

Each case was tried separately, before a different judge and on a different record. In each case the defendant waived his right to a jury trial and agreed to submit the matter upon the transcript of the preliminary examination. Defendant was found guilty as charged and sentenced to state prison, the two sentences to run concurrently.

Counsel appointed by this court to assist defendant on these appeals has reported that, upon thorough examination of the record and after consultation with the attorney who represented defendant at the trial, no issue of law which could be presented on this appeal has been found in the ease tried under superior court number 288143. We have also examined the record and have found no error.

In superior court number 294260 counsel makes a single point: that the prosecution failed to prove that defendant had “served a term” for his prior conviction, citing People v. Wallach, 8 Cal.App.2d 129 [47 P.2d 1071], The cited case is not controlling here because of the subsequent (1957) amendment of Penal Code section 666.

The controlling facts of the case at bench may be stated simply. The information charges and the evidence shows without conflict that on September 16, 1964, defendant stole two suits from a department store in Los Angeles. An exhibit, consisting of a certified copy of records of the Los Angeles County Sheriff, shows that Vernon Tyrone Cowins (stipulated to be the same person as defendant here) had been imprisoned in the county jail from June 25 to August 9, 1964, pursuant to a commitment from the Municipal Court of the Citrus Judicial District “for the term of 60 days. 1 day suspended” by reason of a conviction for the offense of petty theft, in violation of Penal Code section 484.

At the time the Wallach ease arose, the introductory paragraph of Penal Code section 666 read: “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 : . . .” (Stats. 1931, ch. 481, § 2, p. 1051.)

The defendant in the Wallach case had suffered a prior conviction for petty theft, for which the court had ordered that she be imprisoned in the county jail “for the term of 90 days,” of which 60 days were suspended. She actually served [65]