Opinion
For Opinion on Hearing, see, 81 Cal.Rptr. 269, 459 P.2d 680. Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Mark A. Ivener, Deputy Atty. Gen., for plaintiff and respondent.
SCHWEITZER, Associate Justice.
Case No. 307540
1. Facts. On March 7, 1966 defendant pleaded guilty to the crime of assault with a deadly weapon (Pen.Code § 245); a prior alleged felony conviction, burglary (Pen.Code § 459), was found to be true. By judgment dated March 28, 1966 defendant was sentenced to the state prison for the term prescribed by law, the sentence was suspended, and he was placed on probation for two years under stated terms and conditions. On January 10, 1968 in Case No. A -220328, defendant was convicted of grand theft (Pen.Code § 487, subd. 1). On January 31, 1968 in Case No. A-226235, he was convicted of petty theft with a prior conviction of a felony (Pen.Code § 667). In both cases trial was by court commissioner sitting as a judge pro tempore, pursuant to stipulation of defendant and counsel, and appointment by the court for that purpose. Defendant was sentenced on January 31, 1968 in both cases to state prison, the sentences to run concurrently.
Immediately following the sentencing of defendant in Case Nos. A-220328 and A-226235, the court commissioner, acting as a judge pro tempore, commenced a hearing on possible revocation of probation in Case No. 307540. The superior court files in these cases have been lodged with this court pursuant to rule 12(a), California Rules of Court. The record is silent as to how or when the case got on the court's calendar, there being no entries in the minutes between March 28, 1966 and January 31, 1968. Neither the record nor the reporter's transcript of testimony indicate that any order was made by a judge assigning the case for hearing by the commissioner as a judge pro tempore or that any stipulation was entered between the parties that the commissioner could act as a judge pro tempore in hearing the matter. After a short hearing, the court found defendant in violation of probation and resentenced defendant to state prison for the term prescribed by law, pursuant to the judgment of March 28, 1966, the same to run concurrently with the other sentences.
2. The notice of appeal. Defendant's notice of appeal states that it is from the judgment rendered on January 31, 1968. Judgment in this case was rendered March 28, 1966, the action by the court on January 31, 1968 was an order revoking probation and order for the execution of the sentence imposed by the judgment of March 28, 1966. (People v. Martin, 58 Cal.App.2d 677, 137 P.2d 468.) The notice of appeal should have been from the order revoking probation. Such an order is appealable. (Pen.Code § 1237, subd. 3.) 'However, a notice of appeal will be liberally construed to permit a hearing on the merits and avoid a dismissal because of some technical defect or irregularity.' (People v. Robinson, 43 Cal.2d 143, 145, 271 P.2d 872, 873.) We therefore construe the notice of appeal as being from the order revoking probation.
This factual situation, where sentence is pronounced and then suspended, must be distinguished from the case where proceedings are suspended without imposition of sentence, probation granted and thereafter revoked, and sentence then imposed. In this latter case, judgment is rendered at the time sentence is pronounced; an appeal from the judgment would be proper.
3. Court commissioner as judge pro tempore. Defendant contends that in the absence of a stipulation and court order, the commissioner had no authority to act as a judge pro tempore, and that therefore the order revoking probation and sentence were void. He cites In re Chapman, 141 Cal.App.2d 387, 295 P.2d 573, wherein, pursuant to stipulation and court order, a commissioner heard and determined an application for modification of the child custody provisions of an interlocutory decree of divorce. At a later date, without further stipulation or court order, the same commissioner conducted a contempt hearing based on the modified order, found a party in contempt and imposed sentence. On habeas corpus the court stated at page 390, 295 P.2d at page 576: 'It is at once apparent in this case that Commissioner Cochran was not acting as a judge pro tempore by stipulation or appointment and consequently was entirely without jurisdiction to make the order that the wife be committed to jail.'
The Attorney General relies on Martin v. Martin, 215 Cal.App.2d 338, 339, 30 Cal.Rptr. 293, and cites rule 532, California Rules of Court, pointing out that subdivision (b) thereof expressly exempts court commissioners from the requirement of subdivision Both cited cases were decided before the 1966 amendments to the California Constitution and are no longer authoritative. Article VI of the Constitution now provides:
'Sec. 21. On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.
'Sec. 22. The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.'
Sections 259 and 259a of the Code of Civil Procedure (the latter section applicable to Los Angeles County only) must be deemed to be the Legislature's definition of 'subordinate judicial duties.' Subdivision 4 section 259a provides in part that commissioners of the Los Angeles Superior Court shall have the power '[t]o act as judge pro tempore when otherwise qualified so to act and when appointed for that purpose * * *.'
Reading these several sections together, we conclude that before the court commissioner could serve as a judge pro tempore, it was mandatory that there be a stipulation of the parties litigant and a court order of appointment. Neither the constitutional requirement of a stipulation nor the statutory requirement of appointment could be waived. These requirements were not met. The order revoking probation and imposing sentence was void.
In reversing this order, we note that defendant's probationary period expired March 28, 1968. Revocation of probation or modification of an order suspending execution of a sentence must be exercised within the term of probation. (People v. Jordan, 226 Cal.App.2d 7, 11, 37 Cal.Rptr. 738; People v. Blakeman, 170 Cal.App.2d 596, 599-600, 339 P.2d 202.) The defendant should be discharged from probation. (Pen.Code § 1203.3.)
Nothing we have said herein must be construed as limiting the power of a Los Angeles court commissioner '[t]o take proof and make and report his findings thereon as to any matter of fact upon which information is required by the court * * *.' (Code Civ.Proc. § 259a, subd. 2.)
4. Abuse of discretion. The public defender was appointed as attorney for defendant in Case Nos. A-220328 and A-226235. He was not appointed as attorney for defendant in the instant case. When the case was called for hearing on possible revocation of probation, both the public defender and the defendant requested a continuance of three to four weeks to permit the defendant to retain a private attorney. The request was summarily denied. The request was reasonable. The denial thereof constituted an abuse of discretion and a violation of defendant's constitutional rights, sufficient of itself to warrant reversal of the order revoking probation.
Case No. 220328
1. Facts. Joe Mena, a security agent for Broadway Department Store, had received information that on several successive Monday nights, between 7:30 and 8:00 p. m., a person entered the store carrying a big box on his head or on his shoulder. On Monday, March 27, 1967, Mena observed defendant walking through various departments and using a flight of stairs, marked 'Employees Only.' Mena notified his partner, Walter Johnson. Defendant was kept under observation. Approximately 35 minutes later he was seen carrying a large box on his head, leaving the store. Mena and Johnson followed defendant. Defendant looked back in their direction, dropped the box and started to run. After a three to four minute chase, he was apprehended. There was testimony that the box contained Defendant was charged with burglary (Pen.Code § 459), and grand theft (Pen.Code § 487, subd. 1) and with two prior felony convictions. Following a court trial, defendant was found guilty of grand theft, and sentenced to state prison for the term prescribed by law, the sentence to run concurrently 'with any other time owed or being served.' He appeals from the judgment.
2. Determination of value of property. Defendant concedes that the total of the retail prices for the property exceeded $200.00. He argues that the retail price is not necessarily its market value, that since there was no evidence of market value, defendant should not have been convicted of grand theft but at most, petty theft.
Where the value of property is the determining factor, the test is what price the property would bring in the open market, not its special value to the owner or its replacement cost. (1 Witkin, Cal. Crimes (1963) § 372.) Thus in People v. Cook, 233 Cal.App.2d 435, 438, 43 Cal.Rptr. 646, the court disregarded the wholesale price of merchandise and accepted the retail price as determinative of the issue as to whether the crime was grand or petty theft. There is no merit to the contention.
3. Evidence that merchandise taken without consent. Defendant next contends that the prosecution must prove that the merchandise was taken without consent, that no such evidence was offered, and that in the absence thereof, the conviction must be reversed. In this case there was evidence from which it could be inferred that consent was lacking. Mr. Johnson, one of the security officers, testified that he was informed when someone had permission to remove merchandise, that he had not been told that defendant had such permission. Also the manner of the taking, the chase, and the absence of a sales slip confirm the lack of consent. There is no merit to defendant's contention.
4. Jury waiver. Defendant contends that his jury waiver was ineffective in that he was not informed that a jury trial requires a unanimous verdict for conviction. Defendant was represented by an attorney at both the preliminary hearing and at the trial. Before commencing the trial the following dialogue occurred:
'MISS FRIEDENBERG [Deputy District Attorney]: Mr. Tijerina, you understand that in this case now before the Court, No. A 220328, you're entitled to a jury trial to determine your guilt or innocence in this matter, and you're also entitled to a jury trial to determine whether the prior felony convictions that have been alleged are true or false; do you understand that?
'THE DEFENDANT: Yes.
'MISS FRIEDENBERG: Do you know what a jury trial is?
'THE DEFENDANT: Yes, ma'am.
'MISS FRIEDENBERG: That is when twelve people sit over here in the box and hear all the evidence.
'You can give up your right to the jury trial and have the judge sitting alone determine all the issues in this case. What is your desire? Do you want a court trial or a jury trial?
'THE DEFENDANT: Court trial.
'MISS FRIEDENBERG: All right. You waive your right to jury trial at this time on all the issues?
'THE DEFENDANT: Yes.
'MRS. KIPPEN [Deputy Public Defender]: Join in the waiver.
'MISS FRIEDENBERG: People join in the waiver.'
It has been repeatedly held that in a criminal case where defendant is represented People v. Golston,
People v. Lookadoo,Case No. 226235
1. Facts. Defendant was observed in the J. W. Robinson Department Store on October 12, 1967 looking at merchandise. The next day a pile of merchandise was discovered by a store detective on a platform adjoining a flight of stairs restricted to emergency use by employees only. A stake-out was ordered. Shortly after noon on October 13, 1967 defendant arrived, took a paper bag out of his pocket, took a cashmere coat from the pile, and put the coat into the bag. Defendant was apprehended in the store. Store employees testified that defendant did not have a sales slip for the coat, that it was valued at $110, but was on sale for the day for $88, and that he had not been given permission to take any of the merchandise in the pile.
Defendant was charged with burglary (Pen.Code § 459), petty theft with a prior conviction of a felony (assault with a deadly weapon, Pen.Code § 245), a violation of section 667, Penal Code, and with one prior felony conviction, burglary. (Pen.Code § 459.) The first count was dismissed. (Pen.Code § 995.) After trial by the court sitting without a jury, defendant was found guilty of the charge of petty theft with a prior conviction of a felony (Pen.Code § 667), and was sentenced to state prison for the term prescribed by law, the sentence to run concurrently 'with any other time owed or being served.' He appeals from the judgment and order denying motion for new trial.
The order denying the motion for new trial is not appealable and is therefore dismissed. (People v. Ing, 65 Cal.2d 603, 614, 55 Cal.Rptr. 902, 422 P.2d 590; Pen.Code § 1237.)
2. Jury waiver. Defendant contends that he did not waive his right to trial by jury to the charge of petty theft with a prior conviction of a felony (assault with a deadly weapon, Pen.Code § 245), a violation of section 667, Penal Code. While represented by counsel, the following proceedings took place:
'THE COURT: Commissioner Coleman is available for the trial of this case.
'Mr. Tijerina, do you waive your right to a jury trial and consent to be tried by Commissioner Coleman rather than by a jury?
'THE DEFENDANT: Yes, your Honor.
'THE COURT: You are entitled to have a judge of the Superior Court preside over your court trial. Do you waive that right and consent that the commissioner, Commissioner Coleman, hear the matter rather than a Superior Court judge?
'THE DEFENDANT: Yes.
'MR. FISCHER [Deputy Public Defender]: Counsel waives, also.
'THE COURT: People waive?
'MR. GERAGOS [Deputy District Attorney]: Yes, I will waive and join in that stipulation.'
We have already commented on the subject of jury waiver in our discussion of Case No. 220328, paragraph 4, supra. Our comments there are equally applicable to the contention now made and will not be repeated. We hold that there was a legally effective jury waiver.
3. Constitutionality of Section 667, Penal Code. Without citing any authority These contentions have been held to be untenable. Statutes that provide for an increased penalty for subsequent offenses do not result in double jeopardy or cruel or unusual punishment. (People v. McDaniels, 165 Cal.App.2d 283, 286, 331 P.2d 450, involving Pen.Code § 677; People v. Millwood, 150 Cal.App.2d 154, 155, 309 P.2d 495, involving Pen.Code § 644; People v. Quiel, 68 Cal.App.2d 674, 680, 157 P.2d 446, involving Pen.Code § 667.) Such statutes do not violate the due process or equal protection provisions of either the federal or state Constitutions. (People v. Dutton, 9 Cal.2d 505, 507, 71 P.2d 218; People v. McDaniels, supra, 165 Cal.App.2d, at p. 286, 331 P.2d 450.) Section 667 of the Penal Code is not unconstitutional. (People v. Biggs, 9 Cal.2d 508, 512, 71 P.2d 214, 116 A.L.R. 205; People v. Collins, 172 Cal.App.2d 295, 301, 342 P.2d 370.)
'Every person who, having been convicted of any felony either in this State or elsewhere, and having served a term therefor in any penal institution, commits petty theft after such conviction, is punishable therefor by imprisonment in the county jail not exceeding one year or in the State prison not exceeding five years.'
4. Was the theft complete? Defendant argues that the theft was not complete, that the crime of larceny requires asportation, or carrying away, in addition to the taking, pointing out that he did not remove the coat from the store. He cites the early case of People v. Meyer, 75 Cal. 383, 17 P. 431. In Meyer, a thief removed an overcoat form a clothing store dummy on the sidewalk but could not take the coat away because it was chained to the dummy. In reversing the conviction, the court noted that the element of asportation is not satisfied unless it is shown that 'the goods were severed from the possession or custody of the owner, and in the possession of the thief, though it be but for a moment.' (p. 384, 17 P. p. 431.)
In People v. Dukes, 16 Cal.App.2d 105, 106-108, 60 P.2d 197, 199, the defendant was discovered in the living room of a house; as he left with a typewriter, the case opened and the typewriter fell from the case onto the front porch; both the case and the typewriter were then left on the porch. In upholding the conviction, the court noted that the 'interference with the owner's possession need be only for an appreciable interval of time, be it ever so short * * *. Proof of asportation was sufficient in this case.' As said in People v. Quiel, 68 Cal.App.2d 674, 679, 157 P.2d 446, 448, 'The fact that the thief is frustrated in his attempt to carry stolen property away, or that he may change his mind immediately after the theft, because he concludes that the property is of insufficient value to warrant him in retaining it, does not relieve him of the consequence of the theft.'
We conclude that the asportation of the cashmere coat was sufficiently shown in this case. The store detective observed defendant take the coat from the pile of merchandise and put it into a bag which came from defendant's pocket. It was in defendant's possession at the time he was apprehended.
In Case No. 307540, order revoking probation is reversed.
In Case No. A-220328, judgment of conviction is affirmed.
In Case No. A-226235, judgment of conviction is affirmed; the appeal from the order denying motion for a new trial is dismissed.
Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.