Rixner

In an information filed by the district attorney of Los Angeles County, defendant was accused of a violation of section 11500 of the Health and Safety Code in that on or about October 10, 1956, she had in her possession a preparation of heroin. It was further alleged that she had suffered a prior conviction of a felony, to wit, sale of heroin, in the United States District Court for the Southern District of California, for which she served a term of imprisonment in a federal prison.

Defendant pleaded not guilty and denied the prior conviction. Trial by jury was duly waived and the People’s case was submitted on the transcript of the preliminary examination. Defendant testified in her own behalf. Defendant was adjudged guilty, the prior conviction was stricken from the record, and she was sentenced to state prison. Prom the judgment of conviction, and from the order denying her motion for a new trial, defendant prosecutes this appeal.

Concerning the factual background surrounding this prosecution, the record reflects that on the basis of information received in person by Police Officer Pena on October 9, 1956, and by telephone on the day following, from a confidential police…

I reluctantly concur:

This cause is one of the ever growing number of cases, arising particularly in Los Angeles County, where the trial judge, in the face of a certified copy óf a prison record of the defendant showing that the defendant was convicted of a felony and served a term in prison therefor, and a sworn admission on the part of the defendant that he or she was previously convicted of a felony and served a term in prison therefor as charged in the information, either finds the prior conviction to be not true or strikes the same and sentences the defendant as a first offender.

In this case in the first instance the judge found “the defendant guilty of the charge, with a good prior.” Counsel for the defendant then asked the judge to withhold decision on the matter of the prior, and asked “leave to file a written application for probation.”

At the time of hearing the report of the probation officer and pronouncement of judgment, counsel for the defendant represented to the court that the defendant was sick and that she had lost a part of one finger in an automobile accident, and further that the amount of heroin found in her possession was only a small amount, namely two…

In an information filed by the district attorney of Los Angeles County, defendant was accused of a violation of section 11500 of the Health and Safety Code in that on or about October 10, 1956, she had in her possession a preparation of heroin. It was further alleged that she had suffered a prior conviction of a felony, to wit, sale of heroin, in the United States District Court for the Southern District of California, for which she served a term of imprisonment in a federal prison.

Defendant pleaded not guilty and denied the prior conviction. Trial by jury was duly waived and the People's case was submitted on the transcript of the preliminary examination. Defendant testified in her own behalf. Defendant was adjudged guilty, the prior conviction was stricken from the record, and she was sentenced to state prison. From the judgment of conviction, and from the order denying her motion for a new trial, defendant prosecutes this appeal.

Concerning the factual background surrounding this prosecution, the record reflects that on the basis of information received in person by Police Officer Pena on October 9, 1956, and by telephone on the day following, from a…