284 P. 1070 | Cal. Ct. App. | 1930
The People appeal from an order granting the defendant's motion for a new trial upon conviction in the Superior Court of Los Angeles County of petty theft, after conviction in the Municipal Court of the city of Los Angeles, upon a charge of having previously committed petty theft.
Respondent was alleged by information to have unlawfully taken away personal property of another on or about August 1, 1929, and by a second paragraph it was charged that on or about May 2, 1929, he was tried in the Municipal Court and there found guilty of petty theft, and thereafter sentenced and served a term of imprisonment. He pleaded guilty to the last-mentioned charge, and after a trial before the court, was convicted of the later offense. A motion for a new trial was interposed and was granted upon the theory that section
The legislature of 1927 (Stats. 1927, chap. 619, p. 1046), expressly amended sections 484 to 489, both inclusive, and section 490 of said code and added thereto section 490a, providing that:
"Whenever any law or statute of this state refers to ormentions larceny, embezzlement or stealing, said law or statute shall hereafter be read and interpreted as if the word `theft' were substituted therefor." *701
Section
"Every person who, having been convicted of petit larceny and having served a term therefor in any penal institution, commits any crime after such conviction, is punishable as follows:
". . . If the subsequent conviction is for petit larceny, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding five years."
It is obvious that while this section is not specifically mentioned by said amendment, the quoted provisions are plainly within the language of the new section. In People v. Giron,
[2] From the foregoing we think it apparent that section
[4] Another point urged by respondent is that section
The remaining objection that since "theft" is now of broader range than was the offense commonly known as "larceny" prior to the amendments of 1927, and might imply a prior violation of law other than stealing, is not presented by the facts. It is admitted that both of the alleged *703 offenses were committed in 1929. Hence we are not permitted to pass upon the question which might be presented if the act constituting the offense had occurred previously to the taking effect of the section in question. We are not required to say that it was the intention of the makers of this law that it should apply to any prosecution occurring before its enactment, nor to consider whether or not if such had been their intention the statute would have been unconstitutional on that account.[6] No rule is better established than that a statute will never be so construed as to render it unconstitutional unless such an interpretation is clearly indicated, and here there is nothing to suggest an intent of that character.
What we do hold is that section
The order granting a new trial is reversed.
Thompson (Ira F.), J., and Burnell, J., pro tem., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 19, 1930, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 3, 1930.
All the Justices present concurred.