Whelchel

Richard Whelchel pleaded guilty to receiving stolen property with knowledge it was stolen (Pen. Code, § 496, subd. 1). Upon motion by the district *380 attorney, the court dismissed two counts charging him with burglary and grand theft. He was not charged with and he did not admit any previous felony convictions. At sentencing, however, the probation officer’s report indicated Whelchel had four previous felony convictions in the State of Washington. The trial court said Whelchel’s case did not call for state prison, but held it had no discretion because Whelchel’s record made him ineligible for probation. Whelchel’s appeal does not attack the validity of his guilty plea; it asserts errors in the subsequent proceedings determining the degree of his crime and his eligibility for probation. (People v. Ward, 66 Cal.2d 571, 575-576 [ 58 Cal.Rptr. 313 , 426 P.2d 881 ].)

It is apparent the trial court construed its power and discretion too narrowly. The court stated its view Whelchel’s case did not call for state prison, yet the record does not reflect whether consideration was given to adjudging his crime a misdemeanor as authorized under Penal Code, section 496, subd. 1. Had this been…