PEOPLE v. BRITTON

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District Court of Appeal, Second District, Division 1, California.

PEOPLE v. BRITTON et al.*

Cr. 2635.

Decided: August 31, 1935

Frederic H. Vercoe, Public Defender, Ellery E. Cuff, Deputy Public Defender, and Geo. E. Cloud, all of Los Angeles, for appellants. U. S. Webb, Atty. Gen., and Frank Richards, Deputy Atty. Gen., for the People.

Following a plea of “guilty” by defendants to a charge of “kidnaping for the purpose of robbery,” after hearing certain evidence adduced in connection with such accusation the trial court pronounced judgment against defendants in effect that they be imprisoned in the state prison for the term prescribed by law “without possibility of parole.” From such judgment defendants have appealed to this court.

The first point suggested by appellants as affording a sufficient reason for reversal of the judgments, in substance is that the trial court had no authority to include within the judgments the requirement that defendants should be imprisoned “without possibility of parole,” and in its effect is identical with the question presented by the appellants in the case of People v. Britton (Cal. App.) 48 P.(2d) 704, in which case an opinion this day has been filed.

It is considered unnecessary to herein recite the facts which formed the basis for the condition of the imprisonment of defendants of which they here complain. Suffice it to say that such facts do not place the question of the validity of the judgment rendered by the trial court on a footing different in principle from that which obtained in the case to which reference has been had; and, relying upon the authority of that case, as well as upon the authority of the case of People v. Tanner (Cal. Sup.) 44 P.(2d) 324, it is concluded that appellants' point is not well taken.

In substance it also is contended by appellants that, because the indictment returned by the grand jury against defendants contained no allegation that in the course of the commission of the crime of “kidnaping for the purpose of robbery” the victim thereof suffered “bodily harm,” the trial court was lacking in authority to order the imprisonment of defendants in the state prison “without possibility of parole.” Appellants urge that the instant situation is analogous to that where, by reason of a prior conviction, etc., of a defendant, on his conviction of a subsequent felony he may be subjected to punishment greater than though he had not theretofore suffered a conviction; and in that connection directs attention to the rule that, in order that such prior conviction may result in an increased punishment as applied to a subsequent conviction, the indictment or the information wherein the defendant is charged with the commission of such later offense must not only contain an appropriate allegation with reference to the fact of the prior conviction of the defendant, but as well that he has “served a term therefor,” etc., citing People v. Dawson, 210 Cal. 366, 292 P. 267: People v. Arnest, 133 Cal. App. 114, 23 P.(2d) 812.

Notwithstanding the force of persuasive argument presented in behalf of appellant, coupled with authority, including Green v. State, 66 Tex. Cr. R. 446, 147 S. W. 593, and Farnum v. U. S., 1 Colo. 309, together with cogent expression of opinion by learned authors of text-book and digest alike (1 Bishop on Criminal Law, § 601; Bishop's New Criminal Procedure, §§ 77, 80, 84; 31 Cor. Jur. 738), and notwithstanding the fact that, as to certain closely related questions of law that are pertinent to the issue here involved, the several respective views expressed with reference thereto by the different appellate tribunals of this state are not entirely harmonious one with the other, the decisions rendered by the Supreme Court of this state in the two cases of People v. Giacamella, 71 Cal. 48, 12 P. 302, and People v. Russell, 81 Cal. 616, 23 P. 418, are so directly against the contention of appellants that any conclusion that might be reached by this court, whereby the point presented by appellants would be upheld, could be considered only as in direct conflict with the formerly expressed opinions rendered by the Supreme Court. See, also, People v. Walsh, 75 Cal. App. 434, 243 P. 31.

It follows that the judgments should be, and they are affirmed.

HOUSER, Justice.

We concur: CONREY, P. J.; EDMONDS, Justice pro tem.

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