People v. Dunbar

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[Crim. No. 5854. Second Dist., Div. Two. Aug. 28, 1957.]

THE PEOPLE, Respondent, v. JACK FRANK DUNBAR, Appellant.

COUNSEL

Jack Frank Dunbar, in pro. per., for Appellant.

Edmund G. Brown, Attorney General, and Morris Schachter, Deputy Attorney General, for Respondent.

OPINION

FOX, Acting P. J.

Defendant Dunbar was charged in four counts with violating Penal Code, section 470. It was alleged also that he had suffered four prior convictions, three in California and one in Illinois. He entered a plea of guilty to Count I. At the same session of the court, on motion of the district attorney, the prior convictions were dismissed in the interest of justice. Thereafter, probation was denied and defendant Dunbar was sentenced to the state penitentiary.

On this appeal appellant contends that the judgment is invalid (1) on the ground that it was beyond the jurisdiction of California to charge a prior conviction that was suffered in Illinois, and (2) because the date of such conviction was not correctly stated. There is no merit in either of these contentions.

[1] Section 969 of the Penal Code provides that "... all known previous convictions, whether in this state or elsewhere, must be charged." It was therefore imperative that the People allege the prior Illinois conviction. (People v. Ashcraft, 138 Cal. App. 2d 820, 826 [292 P.2d 676].) [2] But upon the dismissal of that charge, without it having been judicially established, such charge could have no effect upon either the judgment or the punishment thereunder. Appellant, therefore, was aggrieved neither by the allegation that he had previously suffered a conviction in Illinois nor by any error in the date of the rendition of such judgment.

The judgment is affirmed.

Ashburn, J., and Richards, J. pro tem., fn. * concurred.

FN *. Assigned by Chairman of Judicial Council.