Digiuro, In re, Cr. 4568

Decision Date01 November 1950
Docket NumberCr. 4568
Citation223 P.2d 263,100 Cal.App.2d 260
CourtCalifornia Court of Appeals Court of Appeals
PartiesEx parte DIGIURO. *

Frank Desimone, Los Angeles, for petitioner.

Ray L. Chesebro, City Attorney, Donald M. Redwine, Assistant City Attorney, and Leland C. Nielsen, Deputy City Attorney, all of Los Angeles, for respondent.

DORAN, Justice.

Petitioner was convicted in the Municipal Court of failing to register as required by a municipal ordinance which provides that certain 'convicted persons' must register and was sentenced to 180 days in jail. It appears that petitioner had registered but did not re-register following a change of residence. Petitioner, in 1934, had been convicted in the Federal Court of passing and attempting to pass a 'certain falsely made, forged and counterfeited obligation of the United States of America, to-wit: a Federal Reserve Note'. The ordinance provides in part that 'Any person who, subsequent to January 1, 1921, has been or hereafter is convicted of an offense 'punishable as a felony in the State of California, or who has been or is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the State of California, would have been punishable as a felony * * *' etc., shall register with the Chief of Police.

It is contended that the offense of which petitioner was convicted is not a felony because the act amounts only to a violation of section 648 of the Penal Code which, for the first offense, is punishable only as a misdemeanor, hence does not come within the ordinance. Respondent however points out that the act is also a violation of section 470 of the Penal Code which is a felony. It is well settled that where an act is punishable under two or more sections of the code it may be prosecuted under either. But that fact which constitutes an indispensable element of the alleged crime is not included in the complaint. Moreover the complaint does not allege that petitioner was ever 'convicted' of anything. The mere failure to register is not a violation. The ordinance contains numerous conditions and acts, the existence of either one or more of which are also necessary to constitute the offense. It is elementary, indeed the Constitution of the United States provides that the accused shall be 'informed of the nature and cause of the accusation' (6th Amendment). Moreover, section 952 of the Penal Code recites that the accused is entitled...

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5 cases
  • People v. Toro
    • United States
    • California Supreme Court
    • January 30, 1989
    ...S.Ct. 499, 507, 92 L.Ed. 682]; Cooke v. United States, 267 U.S. 517, 536-537 [45 S.Ct. 390, 394-395, 69 L.Ed. 767]; In re Digiuro, 100 Cal.App.2d 260, 261 [223 P.2d 263]; see also People v. Robinson, 107 Cal.App. 211, 217 .)" (In re Hess (1955) 45 Cal.2d 171, 175, 288 P.2d 5; In re Robert G......
  • Rudolfo A., In re
    • United States
    • California Court of Appeals Court of Appeals
    • October 2, 1980
    ...S.Ct. 499, 507-508, 92 L.Ed. 682; Cooke v. United States, 267 U.S. 517, 536-537, 45 S.Ct. 390, 394-395, 69 L.Ed. 767; In re Digiuro, 100 Cal.App.2d 260, 261, 223 P.2d 263; see also People v. Robinson, 107 Cal.App. 211, 217, 290 P. 470.)" (In re Hess (1955) 45 Cal.2d 171, 175, 288 P.2d 5, Ge......
  • People v. Atwood
    • United States
    • California Court of Appeals Court of Appeals
    • December 16, 1963
    ...People v. Frost (1932) 125 Cal.App.Sup. 794, 12 P.2d 1096; People v. Cal.App.Supp. 794, 12 P.2d 1096; People v. and In re Digiuro (1950) 100 Cal.App.2d 260, 223 P.2d 263, 873 cited by defendant are distinguishable from the case before us, all holding that under the particular circumstances ......
  • Ex parte Hess
    • United States
    • California Supreme Court
    • October 4, 1955
    ...257, 273, 68 S.Ct. 499, 92 L.Ed. 682; Cooke v. United States, 267 U.S. 517, 536-537, 45 S.Ct. 390, 69 L.Ed. 767; In re Digiuro, 100 Cal.App.2d 260, 261, 223 P.2d 263, 873; see, also, People v. Robinson, 107 Cal.App. 211, 217, 290 P. Since it appears from the judgment roll, cf. In re Bell, 1......
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