I concur in the judgment. The record in this case indicates that it is but another of the long number of cases arising in Los Angeles County where there has been a miscarriage of justice in the administration of the statutes and laws pertaining to narcotics.
The appellant in this instance was charged with two prior convictions, the first of which had to do with burglary and narcotics, and the second of which had to do with narcotics. It was charged in the information that each of these prior offenses occurred in the State of Texas, and that appellant served a separate term in the state prison in the State of Texas for each of said offenses.
The district attorney offered, and there was received into evidence, documents which, without question, and without objection, clearly showed that the appellant had been so convicted and had served such terms in prison. It was stipulated that the person named in the documents was the appellant. It was then stipulated by the prosecution and the appellant, in effect, that the judge could determine the truth or falsity of the charges with reference to the prior convictions. The question was put “Do you want this judge to determine these priors?” and the appellant answered, “Yes.”
The appellant took the witness stand and testified in his own behalf and admitted, with no hesitancy, that he had been so convicted oE such felonies and that he had served terms in prison therefor. Even the attorney for the appellant, in pleading his cause to the court, said, “He has never, so far as I can see, had the opportunity to be placed on probation. *143Recognizing the problem, where he has these two priors, it would appear in his case he was just-when this thing happened . . . (Emphasis added.)
The judge then proceeded to ignore the fact of the priors and the terms served therefor, made no findings thereon, and sentenced the appellant as a first offender.
There is, so far as I can find, no excuse whatsoever for such a course other than to thwart the legislative intention, and the clear wording of the statutes made and provided in such instances, and to give an ex-convict who has twice been convicted of narcotic offenses the advantage of being sentenced as a first offender. Such a course brings the administration of criminal justice into disrepute, unnecessarily breeds serious problems and is grossly unfair to the defendants who are properly sentenced and are serving terms in the state prison as recidivists. (See Pen. Code, §1158; Health & Saf. Code, §§ 11715.6, 11712; People v. Barbera, *(Cal.App.) 323 P.2d 815; People v. Rixner, 157 Cal.App.2d 387, 392 [321 P.2d 91].).
It is not readily ascertainable from the record just why the district attorney did not, at least, ask the judge to make a finding with reference to the priors, even if he, the district attorney, assumed that the judge might, notwithstanding the uncontradieted evidence, find that it was not true that the appellant was previously convicted as alleged. At least there might have been a determination.
A hearing was granted by the Supreme Court on June 4, 1958. The final opinion of that court is reported in 50 Cal.2d 688 [328 P.2d 973].