People v. Tell, Cr. 2994
| Decision Date | 23 June 1954 |
| Docket Number | Cr. 2994 |
| Citation | 271 P.2d 568,126 Cal.App.2d 208 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. TELL. |
James M. Dennis, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.
This appeal is from an order denying a petition for coram nobis which sought the vacation of a judgment of conviction of violating section 288 Penal Code. The appeal has been well briefed and argued by counsel appointed by this court at appellant's request. The sole ground relied upon is that the failure of the trial court to require a report of the probation officer before sentencing appellant was prejudicial error.
Penal Code section 1203 so far as here pertinent provides: 'probation shall not be granted * * * to any defendant convicted of the crime of * * * violation of Section * * * 288 * * * of this code * * * unless the court shall be satisfied that he has never been previously convicted of a felony in this State nor previously convicted in any other place of a public offense which would have been a felony if committed in this State * * *.'
On cross-examination during the trial of the charge against him appellant admitted that he had previously been convicted of a felony, grand theft. This fact, under the quoted provision of section 1203, rendered appellant ineligible for probation and no prejudice could have been suffered by him through the court's refusal to order a report from the probation officer.
Appellant argues that under sections 969, 969 1/2 and 1025 of the Penal Code the prior convictions must be charged in the indictment or information in order to be considered by the court in applying the provision of section 1203 above quoted. The court ruled otherwise in People v. Leach, 22 Cal.App.2d 525, 71 P.2d 594. We are satisfied of the correctness of the reasoning and conclusion of the court in that case. The very language of section 1203, 'unless the court shall be satisfied that he has never been previously convicted of a felony', shows on its face that the court is entitled to go beyond the issues framed by the indictment or information in determining whether the defendant is entitled to probation.
Order affirmed.
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People v. Wiley, S034307
...a previous felony conviction, even though the prior offense had not been pleaded or proven before the jury. (People v. Tell (1954) 126 Cal.App.2d 208, 209, 271 P.2d 568; People v. Leach (1937) 22 Cal.App.2d 525, 527-528, 71 P.2d 594.) A recent Court of Appeal opinion holds that trial courts......
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People v. Ibarra
...report, including facts therein relating to prior convictions of the defendant not charged in the information.3 People v. Tell, 126 Cal.App.2d 208, 271 P.2d 568, and People v. Leach, 22 Cal.App.2d 525, 527, 71 P.2d 594, holding that a trial judge may consider convictions not charged in the ......
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People v. Lopez
...with the applicable law as to eligibility for probation. 6 (See People v. Brown, 172 Cal.App.2d 30, 34, 342 P.2d 410; People v. Tell, 126 Cal.App.2d 208, 209, 271 P.2d 568.) The appeal from the order denying the motion for a new trial is dismissed. (Pen.Code, § 1237.) The judgment is SHINN,......
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People v. Lo Cicero
...(1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15; In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913.7 People v. Tell (1954) 126 Cal.App.2d 208, 271 P.2d 568, and People v. Leach (1937) 22 Cal.App.2d 525, 71 P.2d 594, cited by the Attorney General, were limited and distinguis......