Pineda

Defendant, having been resentenced following one appeal ((1965) 238 Cal.App.2d 466 [ 47 Cal.Rptr. 879 ]), *447 has again appealed from a judgment sentencing him to state prison for possession of a narcotic in violation of section 11500 of the Health and Safety Code, with two prior convictions for violation of the provisions of the same section, one in 1951, a misdemeanor, and the other, in 1959, a felony.

In the prior appeal the defendant contended that the judge coerced the jury, and that there was error in the sentencing. There was no challenge to the sufficiency of the evidence to support the conviction. ( 238 Cal.App.2d at p. 467 .) The reviewing court resolved the first issue against the defendant (id., pp. 468-470). On the second issue it found there had been an error in the sentencing because both the prior offenses had been charged as, had been admitted to be, and were referred to by the judge as, felonies, although in fact the earlier, 1951, violation was a misdemeanor. (It was so designated in the abstract of judgment.) Further error was found in treating defendant’s application for lesser punishment as a hopeless motion for probation for which he was ineligible (Health…