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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Hersey BENN, Defendant and Appellant.

Cr. 19714.

Decided: March 29, 1971

Hersey Benn, in pro per. No appearance for the respondent.

Defendant was charged with, and convicted of, two counts of sale of heroin, in violation of section 11501 of the Health and Safety Code; two alleged prior convictions for narcotic offenses were found to be true. He appealed, and the judgment of conviction was affirmed by this court on January 22, 1964. (People v. Benn (1964) 2d Crim. No. 9035 [unpublished].) Thereafter, we recalled the remittitur issued on the first appeal because of inadequate representation by counsel under the rule of Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and People v. Feggans (1967) 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21, appointed counsel on appeal, reconsidered the appeal and again affirmed the conviction. (People v. Benn (1969) 2d Crim. No. 9035 [unpublished].) On November 2, 1970, defendant filed in the superior court a petition for habeas corpus, seeking to have the prior convictions stricken under the rule of People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.1 The trial court ordered his return from state prison, appointed counsel for him, and ordered prepared and transmitted a ‘case summary’ of defendant's activities while in the custody of the Department of Corrections. A hearing was held, at which the trial court struck one of the two priors originally alleged against defendant but denied the motion to strike the second prior. The court then (on December 28, 1970) resentenced defendant on the two counts on which he had been convicted, the two sentences to run concurrently. Defendant has appealed from that judgment; we dismiss the appeal.

While defendant may properly appeal from the latest judgment (Pen.Code, § 1237), that appeal brings before us only the propriety of the order made on the motion to strike the priors. His conviction on the two substantive counts were finally determined by our decision in 1969, affirming the judgment of conviction. Nothing in Tenorio entitled defendant to a third review of that conviction; Tenorio entitled him only to a review by the trial court of his motion to strike the alleged prior convictions.

But, under Tenorio, whether or not to strike a prior, proved to have been valid, is a matter of discretion for the trial court. Defendant cannot ask more than that the court, in view of its power under Tenorio, receive such a motion, consider it, and then act; he is not entitled, as of right, to have the priors stricken. The record shows that defendant received a full hearing on his motion; we have no power to substitute our opinion for that of the trial court.

The only possible basis for objection to the trial court's procedure is that it did not order a new probation report, but substituted therefor the case summary from the Department of Corrections. No objection was made in the trial court to that procedure; even assuming that a new probation report should have been ordered, the procedural defect (if any) could not possibly have prejudiced defendant.2

It follows that the record shows no possible ground for the present appeal; there is nothing before us to review. Since the appeal is patently frivolous, we see nothing in Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Anders v. California, supra (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, or People v. Feggans, supra (1967) 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21, to require us to appoint counsel, merely to have him go through a useless of reporting to us procedural facts within our present knowledge and telling us, what we already know—namely that the record of the only proceeding before us for review shows no possible arguable ground for reversal.

The appeal is dismissed as frivolous.


1.  This is the procedure dictated by footnote 2 on page 95, 89 Cal.Rptr. 249, 473 P.2d 993 of the opinion in Tenorio.

2.  We point out that, since defendant has been continuously in the custody of the Department of Corrections since 1963, a new probation report could have done no more than to incorporate the departmental case summary. Whatever the value of a new probation report when a defendant has been free on bail pending judicial proceedings (People v. Causey (1964) 230 Cal.App.2d 576, 41 Cal.Rptr. 116), or in a case where a court is reconsidering a possible grant of probation, a new report in a case such as the one at bench would serve no discoverable purpose.

KINGSLEY, Associate Justice.

FILES, P. J., and DUNN, J., concur.