The PEOPLE, Plaintiff and Respondent, v. Nanga-Parbet ALI, Defendant and Appellant.
Defendant was charged with three counts of violation of paragraph (6) of subdivision (b) of section 484a of the Penal Code (illegal use of a credit card). As originally filed, the information charged two prior felony convictions; one in New York for grand larceny and forgery; one in Idaho for attempt to commit grand larceny. He pled not guilty and denied the priors as alleged. After a trial by jury, the Idaho prior was stricken on the court's own motion; the jury found him guilty as charged on the three substantive counts and also found that the New York conviction was true as alleged. Judgment was entered on that verdict, imposing a state prison sentence to run concurrently on all three counts. He appealed from the judgment and also sought relief by way of habeas corpus.
In those appellate proceedings, this court vacated the judgment of conviction, on the ground that defendant had been denied his constitutional right to counsel at the trial. (In Re Ali (1964) 230 Cal.App.2d 585, 41 Cal.Rptr. 108.) Our opinion concluded as follows (at page 591, 41 Cal.Rptr. at page 112):
‘The net effect of the trial court's action was to deny petitioner effective representation during the trial; a conviction resulting therefrom cannot stand. However, the error affects only proceedings was to deny petitioner effective representation during the trial; a conviction resulting therefrom cannot stand. However, the error affects only proceedings. subsequent to the arraignment and petitioner is entitled only to have the criminal prosecution resume at the point where the constitutional right was denied.
‘The writ [of habeas corpus] is granted; the judgment of conviction is vacated; petitioner is ordered returned to the custody of the Sheriff of Los Angeles County pending further proceedings in the superior court of that county consistent with this opinion.’
Pursuant to our remittitur, defendant was again brought to trial on the original information. The proceedings on remand, prior to the taking of testimony, are summarized in our opinion in In Re Ali (1965) 236 Cal.App.2d 679, 46 Cal.Rptr. 170 and need not be here repeated. Prior to the impanelment of the jury, there was a discussion between the trial judge, the deputy district attorney and defendant1 regarding the prior convictions, at the end of which defendant admitted the New York and the Idaho convictions as charged in the original information.
The trial proceeded, resulting in a verdict again finding defendant guilty as charged on all three counts.2 Defendant was sentenced to state prison on the three counts, the judgment ordering the sentences to run consecutively.
Defendant appealed from the second judgment of conviction and also sought relief by way of habeas corpus. We denied habeas corpus, for reasons set forth in our opinion In Re Ali, supra, 236 Cal.App.2d 679, 46 Cal.Rptr. 170. Although the points therein considered are again urged on us on this appeal, we do not discuss them in this opinion, since our determination thereof has long since become final and the law of this case; we discuss herein only those points excluded from consideration in the habeas corpus proceeding or newly raised herein. The issues raised in the briefs on appeal3 and which are now before us are:
(1) That the court erred in imposing consecutive sentences at the second trial in light of the imposition of concurrent sentences at the first;
(2) That the court erred in receiving a plea to the alleged Idaho prior in view of the striking of the prior at the first trial;4
(3) That the New York conviction, as alleged, constituted only one, and not two priors;
(4) That, under the evidence, defendant was not guilty of violating the paragraph relied on;
(5) That, although the trial court defined for the jury the elements of paragraph (3) of subdivision (b) of section 484a of the Penal Code, it did not advise the jury that it might find defendant guilty of a violation of that paragraph as a lesser and included offense;
(6) That the trial court, in instructing on the elements of the offense charged, did not include any reference to the portion of that subdivision defining as a misdemeanor the obtaining of goods of a value less than $50, thereby depriving defendant of an opportunity for a misdemeanor conviction;
(7) In general that the trial court was unfair and that the evidence was insufficient to sustain the verdicts on any of the counts.
We have read the transcript of the trial. From that reading it is clear that the trial court granted defendant a full and fair hearing and that, except in the instances discussed below, the evidence was sufficient to support the verdicts. A large part of defendant's brief is devoted to what is no more than an argument to this court on the credibility of the witnesses and to inconsistencies therein—all matters for the trial court and jury and not for us.
We think it clear that the trial court was in error in imposing consecutive sentences at the second trial. A defendant who seeks and secures a retrial, for errors occurring at his first trial, does not do so at the risk of incurring a penalty greater than that originally imposed. (People v. Henderson (1963) 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677; In Re Ferguson (1965) 233 Cal.App.2d 79, 43 Cal.Rptr. 325.) It is of no importance that facts adduced at the second trial may have indicated that the original sentence might have been lighter than defendant deserved.
For the same reason, it was error for the trial court to seek or permit a plea as to the alleged Idaho conviction which had been stricken at the first trial. In this case, the sole effect of pleading and proving prior convictions is to invoke the provisions of section 3024 of the Penal Code which impose increased minimum sentences under those circumstances. Defendant's original sentence subjected him to the effect of section 3024 only to the extent that the New York conviction required; he did not risk a more severe effect by securing the vacation of that judgment.
Appointed counsel points out that the recital in the judgment as to the New York convictions was also in error. The allegation was in the following language:
‘That before the commission of the offenses hereinbefore set forth in this information, said defendant, NANGAPARBET ALI, under the name of CHARLES WILLIE ELONZO, was in the Court of General Sessions of the State of New York, in and for the County of New York, convicted of the crimes of GRAND LARCENY and FORGERY, felonies, and the judgment of said court against said defendant in said connection was, on or about the 16th day of November 1943, pronounced and rendered and said defendant served a term of imprisonment therefor in the State Prison.’
Since defendant's admission was only of the prior as charged, it follows that counsel is correct in contending that the record does not show that defendant had served separate sentences for the two crimes, and that the language of the present judgment—that defendant had served a term in state prison for ‘each’ of the felonies is erroneous or (at least) ambiguous.
Since the only immediate effect of the allegation and proof of a prior conviction is, as we have above pointed out, to invoke the provisions of subdivision (c) of section 3024 of the Penal Code, and since that provision is equally operative whether the defendant served a sentence or not, we delete the recital in the judgment with reference to the service of the sentence that was pronounced, leaving to any future case in which it may be significant the resolution of any issue other than the admitted fact that this defendant was convicted in New York of the two crimes mentioned in the information's allegation above quoted.
Insofar as herein involved, the portions of subdivision (b) of section 484a of the Penal Code read as follows:
‘(b) Any person who:
‘(3) Has in his possession, or under his control, or who receives from another person a credit card with the intent to circulate or sell the same, or to permit or cause or procure the same to be used, delivered, circulated or sold, knowing such possession, control or receipt to be without the consent of the cardholder or issuer, is guilty of a misdemeanor.
‘(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) of this subdivision, is also guilty of a misdemeanor if the total amount of goods, property or services or other things of value so obtained by such person does not exceed fifty dollars ($50), or 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).’
Taking the evidence, as we are required to do on this appeal, most favorably to the People, we think that it shows the following facts:
(1) That defendant was in the possession of a credit card (number LA 349 287) issued by the Signal Oil Company to ‘Tal Rent A Car Corp.’; that that card had been taken by someone from the possession of that designated cardholder without its consent and that defendant had no authority from or consent of the cardholder to possess or use that credit card;
(2) That defendant knew that his possession and use of the card was unauthorized and that he both intended to and did use that card without the consent of its lawful holder. It follows that the evidence was sufficient to support a finding that defendant had violated paragraph (3) of subdivision (b) of section 484a of the Penal Code—one of the elements of a violation of paragraph (6).
Defendant was here charged with using the illegitimately obtained card on three occasions. The information does not identify theses three transactions other than to allege one violation ‘on or about’ March 18, 1963, and two violations ‘on or about’ March 19, 1963. In his argument to the jury, the prosecuting attorney discussed the evidence relating to the first transaction with a filling station operator named Scherer as applying to Count I, the evidence relating to a transaction with a filling station operator named Kidd as applying to Count II, and the evidence relating to a second transaction with Scherer as applying to Count III. We assume that the jury followed this allocation and we discuss the evidence and contentions as to each count on that same basis.
As to Count I, so identified, the evidence supports a finding that defendant, after having purchased gasoline on March 7th and 18th from Scherer, using the credit card and a false name, returned at a later time on March 18, 1963, and ordered two tires, at a price of $93.60. They were invoiced to defendant, under the name he had used in purchase of the gasoline and were charged against the credit card, but were not immediately delivered because they were not in stock. At a later hour, a man named Calhoun, bearing a note signed by defendant, came to the station, secured the tires, and had them installed on a 1961 white Pontiac, the property of Mrs. Lintheimer, to whom defendant had agreed to sell these tires for $25 each. There was ample evidence to identify defendant as the person who ordered the tires, caused the credit card to be used on the invoice, wrote the note carried by Calhoun, directed Calhoun to get the tires, and negotiated with Mrs. Lintheimer for their resale. All of the elements necessary to sustain a conviction on Count I were present.
As to Count II, identified as above, the evidence shows that, on March 18, 1963, defendant, using a false name, ordered two tires from a filling station operator named Kidd. The invoice was stamped with the credit card in question. The tires were not in stock and defendant was told to return. Later, Calhoun appeared, bearing a note from defendant. Kidd, having discovered the status of the credit card used by defendant, and using as an excuse that the invoices had become blurred, refused to deliver the tires, asking that defendant return and sign a fresh copy. The tires were never delivered to anyone.
Defendant points to the language of paragraph (6), above quoted, and argues that the paragraph creates no crime unless goods are actually obtained by use of the credit card. It will be noted that the statutory provision reads that ‘Any person who * * * knowingly uses or attempts to use * * * a credit card * * * under circumstances which would constitute a crime under paragraphs * * * (3) of this subdivision, is * * * guilty of a misdemeanor if the total amount * * * so obtained * * * does not exceed fifty dollars ($50), or is * * * guilty of a felony, if the total amount * * * so obtained * * * exceeds fifty dollars ($50).’ (Emphasis added.) The statute is no model of drafting. If we adopt defendant's construction, we must treat as surplusage the legislative use of the phrase ‘or attempts to use’ at the beginning of the paragraph; if we adopt the construction urged on us by the Attorney General, we must disregard the legislative use of the words ‘so obtained’ at a later place and, in effect, read those words as though the Legislature had said ‘so obtained or attempted to be obtained.’ The Attorney General argues that this provision was a codification of People v. Von Hecht (1955) 133 Cal.App.2d 25, 283P.2d 764, in which, under similar facts, a conviction of attempted grand theft was sustained. But, while the Legislature may have desired to codify VonHecht, it clearly did not say so in clear and unambiguous language. We will not extend this opinion by citation of, or quotation from, well known rules of statutory construction and constitutional law. We think it clear that the statute, as enacted, did not advise, with sufficient clarity, that the use of a card, obtained and held in violation of paragraph (3), was also an additional crime where the attempt to obtain goods, services or other things of value failed of its purpose. It follows that the conviction on Count II cannot be sustained.
As to Count III, identified as above, the evidence shows that defendant, after having obtained, through Calhoun's services, delivery of the two tires involved in Count I, returned to the Scherer station, bought some gasoline which was charged against the credit card, and ordered two more tires, on the same credit card and using the same false name. As before, the tires were not in stock and were to be picked up later. But, before Calhoun arrived with a new not to take delivery, the status of the credit card had been discovered, Calhoun was arrested and the tires were never delivered to anyone.
It follows from what has been said above, that these facts do not sustain a felony conviction under paragraph (6), and that the judgment of conviction of a felony, entered on that count, cannot stand.
As we have said above, defendant also contends that the trial court erred in not instructing the jury that paragraph (3) of subdivision (b) of section 484a was an included offense in the offenses charged in Counts I, II, and III, and in not instructing the jury, in connection with Count III, that the obtaining of goods of a value of less than $50 was a misdemeanor. We see no error insofar as Count I is concerned. The sole issue, as to that count, was whether or not defendant had secured the two tires by use of the illegally possessed credit card, as the People alleged. If defendant was guilty at all, he was guilty of a felony under paragraph (6). Where a defendant is either guilty of the offense charged or not guilty at all, it is unnecessary to instruct on any lesser or included offenses, such instruction being required (at least absent request) only where, under the evidence, the jury might have found a defendant not guilty of the greater crime but guilty of something less than that charged. Since the judgment on the other two counts must be reversed, in any event, the matters now urged need not here be determined.
The judgment on Count I is modified (a) by deleting all reference to the Idaho conviction, and (b) by deleting the words ‘and served a term in the state prison for each of said prior convictions'; as so modified, the judgment on Count I is affirmed. The judgment on Counts II and III is reversed.
1. At the second trial the public defender was orginally appointed to represent defendant. At defendant's request, the public defender was relieved and the case proceeded with defendant acting in propria persona. The trial court fully and at length counseled defendant as to the consequences of this action. We have no doubt but that the waiver of counsel was made freely and intelligently and that there was no error in this respect.
2. The minutes, as reflected in the clerk's transcript, recite two verdicts of guilty on Count II, one on Count III, and none as to Count I. But the original verdicts, also before us as part of the clerk's transcript, show verdicts on all three counts as above stated. We disregard the clerical error in the minutes.
3. At defendant's request, we appointed counsel to represent him on this appeal. Thereafter defendant asked us to dismiss the counsel so appointed. We directed counsel to proceed with the preparation and filing of a brief, for the assistance of the court. On its filing, we relieved that counsel from further obligations and allowed defendant to file an additional brief in propria persona. In addition, we have read and considered the arguments made by defendant in sundry other documents sent by him to us in connection with these and related proceedings. The statement of issues, set forth in the opinion, represents our best understanding of the issues raised by appointed counsel and by defendant.
4. The Attorney General argues that points (1) and (2) are not before us, because the record of the first trial is not included in the record on appeal in the present case. The actions involved were part of the superior court file in this case, necessarily were before the trial court, and are matters of which we take judicial notice. The argument is without merit.
FILES, P. J., and JEFFERSON, J., concur. Hearing granted; MOSK, J., not participating.