People v. Perry

• Decision Date: 19 October 1964
• Docket Number: Cr. 4605
• Citation: 40 Cal.Rptr. 829,230 Cal.App.2d 258
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel PERRY, Defendant and Appellant.

Page 829

40 Cal.Rptr. 829

230 Cal.App.2d 258

PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel PERRY, Defendant and Appellant.

Cr. 4605.

District Court of Appeal, First District, Division 2, California.

Oct. 19, 1964.

Hearing Denied Dec. 17, 1964.

Clarence B. Knight, Millbrae, for appellant (Under appointment of District Court of Appeal).

Stanley Mosk, Atty. Gen., of State of California, Albert W. Harris, Jr., Edward P. O'Brien, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Justice.

On this appeal from a judgment of conviction entered on his plea of guilty to a felony, using a stolen credit card in violation of section 484a, subdivision (b)(6), of the Penal Code, defendant, Manuel Perry, contends that the complaint failed to charge a public offense or at most charged a misdemeanor, and that he has been deprived of a substantial right because the court did not rule on his motion for probation.

The record shows that on October 14, 1963, appellant and his wife, Noreen, were jointly charged with a felony violation of Penal Code section 484a, subdivision (b)(6), by a complaint in the municipal court. Subsequently, both entered pleas of guilty and were certified to the superior court for sentencing. On November 20, 1963, both were arraigned for judgment in the superior court and interposed a motion for probation. This motion was continued as the court ordered further proceedings suspended under section 6451 of the Penal Code. On December 4, 1963, the matter was submitted on the written reports of the doctors and the court found appellant and his wife were drug addicts and committed them to the rehabilitation center pursuant to section 6451 of the Penal Code.

Several months later on February 14, 1964, in an ex parte proceeding, appellant was ordered returned from the California Rehabilitation Center for further proceedings. On March 4, 1964, at the hearing on his motion for probation, appellant filed a petition for a writ of habeas corpus. The hearing on the petition was continued to March 13, 1964. On that date, appellant was assisted by the public defender. Appellant's petition for the writ was denied. As appellant indicated that he had had two prior felony convictions, no further action was taken on the motion for probation. After a denial of appellant's motion for a change of plea, he was sentenced to the state penitentiary.

Penal Code section 484a, subdivision (b)(6), provides, in part: '(b) Any person who: * * *

'(6) Knowingly uses or attempts to use for the purposes of obtaining goods, property, services or anything of value, a credit card which was obtained, or is held by the user, under circumstances which would constitute a crime under paragraphs (1), (2) or (3) ¹ of this subdivision * * * is also guilty of a felony, if the total amount of goods, property or services or other things of value so obtained by such person exceeds fifty dollars ($50).'

The complaint by which defendant was charged reads, so far as relevant: '* * * said defendants did in the City and County of San Francisco, State of California, on the 14th day of October A.D. 1963, commit the crime of Felony, to-wit: Violating 484a(B)(6) of the Penal Code of the State of California in that said defendants did knowingly and with intent to defraud use for the purpose of obtaining goods and property a credit card stolen from the possession of the cardholder, the value of such goods and property exceeding $50.00.'

Appellant argues that the complaint fails to state a public offense under section 484a, subdivision (b)(6), of the Penal Code as there is no allegation that the credit card in question was stolen in California, that he stole the card, or that he actually obtained goods or property exceeding $50 with the card. Relying on section 1012 of the Penal Code, appellant contends that the omission of these basic facts is jurisdictional and that neither his plea of guilty nor his failure to raise the alleged defects in the trial court constitutes a waiver on appeal.

A violation of Penal Code section 484a, subdivision (b)(6), does not require that the credit card be stolen by the person charged or that it be stolen in California. It is sufficient if the defendant knowingly has wrongful possession and uses the card for the purposes indicated in the statute and here such an offense was clearly alleged to have occurred in San Francisco. If the complaint was ambiguous in charging that the defendant actually obtained over $50 worth of goods, the ambiguity should have been raised in the trial court and cannot now be considered on appeal (People v. Searcy, 199 Cal.App.2d 740, 18 Cal.Rptr. 779, 90 A.L.R.2d 814).

In compliance with the modern rules of simplified criminal pleading (Pen.Code §§ 950-959), the complaint adequately advised appellant of the charge against him in such a manner as to enable him to plead or properly prepare a defense (Pen.Code § 952; People v. McCurdy, 165 Cal.App.2d 592, 597, 332 P.2d 350). His plea of guilty constituted an admission of every element of the offense charged and a conclusive admission of his guilt (People v. Gannaro, 216 Cal.App.2d 25, 30 Cal.Rptr. 711).

Appellant cites Bonwell v. Justice Court, 148 Cal.App.2d 906, 307 P.2d 716 and contends that the statute is unconstitutional. The case is not in point. There, the court held unconstitutional section 11556 of the Health and Safety Code which made it unlawful to visit or be in any room or place where any narcotics were being or had recently been used, as the statute did not contain the necessary element of knowledge. Section 484a, subdivision (b)(6), of the Penal Code prohibits the 'knowing' use or attempted use of a wrongfully obtained or possessed credit card and here the required scienter is properly alleged (cf. Callan v. Superior Court, 204 Cal.App.2d 652, 22 Cal.Rptr. 508; Pen.Code § 484a, subd. (b)(3) and subd. (c).)

Appellant's major contention, based on People v. Means, 117 Cal.App.2d 29, 254 P.2d 585, is that he was deprived of a substantial right because the court failed to rule on his motion for probation originally made on November 20, 1963, and renewed at the March hearing. The record indicates that appellant admitted that he had been convicted of two prior felonies. Paragraph four of section...