I reluctantly concur:
I would prefer that the cause he sent back to the trial court with directions to impose a proper sentence or judgment in *580accordance with the actual facts of the case. However, as the case law now stands, I realize that this probably would result only in added expense and loss of time in bringing the appellant back to the trial court where it could be found that “in the interests of justice” appellant did not suffer two prior felony convictions (one federal cause and one state case consisting of two separate, distinct counts and sentenced separately on each), though the contrary is the truth.
As I view it, the appellant frankly admitted the prior convictions in court and he should, in my opinion, suffer the added penalty provided in the statutes for those with prior convictions.
This case is but another of a long line of cases wherein an appellant was charged in the information with, and personally admitted in open court to prior convictions of felonies. In this instance it was charged in the information that the appellant had been convicted of a violation of the Harrison Narcotic Act, a felony, in 1944, and had served a term in a federal prison therefor, and in addition thereto that he had been convicted of a violation of section 11715, Health and Safety Code, a felony (forgery of prescriptions for narcotics) in 1949, and had served a term in the state prison therefor.
At the time of the taking of the pleas, on April 30, 1956, each of the defendants remained mute as to the prior convictions, and the court thereupon denied the same on behalf of each of the defendants. On June 4, 1956, the cause was called for trial and appellant himself, in open court, specifically admitted the two prior convictions as charged in the information.
At the time of sentencing it was brought to light that Bartlett, appellant’s codefendant, was at that very moment on probation for another offense, and as the court remarked, “has got three pages of prior brushes with the law.” In addition, it was brought out that he was a narcotic addict, or had a “narcotic problem.” His record indicated that he had been a “booster” (shoplifter) off and on since he started using narcotics about eight years ago; that he had been involved in heroin transactions and had been in jail several times as a user of narcotics. Further, the record disclosed that in 1955 he had pleaded guilty to a burglary charge, and in October, 1955, the proceedings had been suspended and he was given five years’ probation, a part of the terms being that he was to go to a hospital in Fort Worth, Texas, for treatment (presumably for narcotic addiction). He left supposedly to go to *581the hospital but he apparently never arrived there, and his whereabouts since that time were unknown until his arrest. He was sentenced to the state prison on each of the present counts, the sentences to run concurrently.
As to appellant Burnside, his counsel in speaking to the court at the time of sentencing, said that the appellant was a professional gambler and a “very friendly person,” and that he would “like at this time to request leave to withdraw the plea as to the priors for the purpose of having them determined by the Court at this time.” He further said, “Your Honor, may I call your attention to the priors. They are two narcotic priors.” Burnside’s record discloses that he was a professional gambler who worked at all of the crooked tricks of the trade; that he was an illegal user of narcotics since about 1936, and had used heroin at least during the last eight months; that he had been picked up at various times for crimes such as extortion and robbery; that he went to the state prison on his second felony narcotic conviction from where he was paroled; and that during such parole term he was involved in a robbery and sent back to prison by the parole authorities to serve the full term. Apparently immediately upon his release from prison he engaged in the narcotic traffic again and was arrested on the present charge March 28, 1956.
The reporter’s transcript discloses that the judge, at the time of sentencing, made no comment or statement whatever in answer to or regarding the request of counsel with reference to the prior convictions, and immediately following the request of counsel, sentenced appellant to the state prison, and ordered the sentences to run concurrently. And in any event, there is nothing whatsoever in the record as of that time to the effect that appellant denied the prior convictions.
Although there is no abstract of the judgment on file in the record in accordance with the provisions of section 1213.5 of the Penal Code, the clerk’s minutes in the file disclose that on July 5, 1956, at 9:15 o’clock a. m., the court found the priors to he true, and set them forth in full. That set of minutes was entered on July 9, 1956. The record then discloses that on July 9, 1956, at 9:30 o’clock a. m., the following occurred in court:
“The Court : People v. Bartlett and Burnside,
“Mr. Graves: If the Court please, I have a motion in that matter. At this time I would like to move the Court to withdraw the previous admissions as to the priors of both defend*582ants for the purpose of entering a new and different plea as to those priors; that is, deny them.
“The Court : The motion to withdraw the admission of the priors as to both defendants will be granted.
“Mr. Graves : Thank you. Would the Court make a finding now as to the existence of those priors?
‘ ‘ The Court : The Court finds the priors to be not true.
“Mr. Graves: Thank you, your Honor.”
■ (Whereupon the proceedings in the above-entitled matter were concluded.)
There is then contained in the file another set of minutes purportedly of July 5, 1956, wherein it is recited “prior convictions proven not true.” The court reporter’s transcript shows no such proceedings on that date. That set of minutes was entered July 11, 1956.
On July 12, 1956, appellant filed his notice of appeal and on the same date the judge issued a stay of execution pending appeal and released the appellant on $3,000 bail. In October, 1956, the depositor of the bail surrendered the defendant in court, the bail was exonerated and the defendant was remanded to custody.
I am fully aware that under People v. Burke, 47 Cal.2d 45 [301 P.2d 241], and People' v. Harris, 146 Cal.App.2d 142 [301 P.2d 178], the following situation is possible: though an ex-convict has frankly admitted in open court that he has been convicted of the prior felony convictions charged against him and that he has served terms therefor in prison,—that subsequently, perhaps at the time of sentencing, or later, the trial judge may find that the defendant was not so convicted, and that he did not serve any terms in prison therefor.
This is as if the trial judge were to say to the defendant, “Mr. Defendant, though you have admitted that you were previously convicted of the felonies charged against you, and though you have admitted that you served terms therefor in prison, I am now going to find that you were not so convicted, and further that you did not serve any terms in prison therefor, in order that I can avoid for you, the added penalties which the legislature has imposed upon defendants with prior felony convictions.”
But this case goes one step further than the previous cases, and is an example of what can happen when courts fail in the first instance to stay within the bounds of the statutes adopted by the Legislature. Here the appellant himself never *583denied that he had been so previously convicted, and the judge, in open court, at the time of sentencing, took no action, made no comment or statement about the request with reference to the prior convictions, and sentenced the defendant to the state prison. Pour days later, and obviously after some sort of conference or arrangement, which so far as the court reporter’s notes indicate, did not occur in open court, the proceedings heretofore set forth, as of the 9th of July, took place. The defendants themselves were not even present in court on July 9th, according to the clerk’s minutes and the court reporter’s notes are silent on the subject.
The question can well be put, “When, if ever, does a judge not have the right or power to find the exact opposite of that which the defendant freely and openly admits, and which is documented by certified copies of judgments, finger prints and prison records?”
If it is too severe to impose an added punishment upon a defendant twice previously convicted of a felony and who has served penitentiary terms therefor, the Legislature should be asked to amend the law. In any event, an ex-convict, after one or two experiences in prison, can avoid the severity of the law in this respect, if there is any severity in it, by the simple process of behaving himself and complying with the law. Certainly the courts should not take it upon themselves to do by sophistry and indirection and fiction, that which they cannot legitimately do directly.
Courts should not torture the language of the statutes to the extent of giving a meaning thereto which is clearly not there, and they should not dotingly relieve such defendants of the responsibility of their own admitted course of conduct.
Under the situation presented in this case the good citizens of the community, surely with wonderment, are left to figure out what sort of legalistic legerdemain, or sleight of hand can bring about such an anomaly, and a defendant could well experience some bewilderment as to just where he was during the time of his incarceration, if he was not in the penitentiary, as the record discloses he was and as he said he was.
Respect for the law will not be enhanced by the procedures adopted and followed in this case.
A petition for a rehearing was denied September 30, 1957, and respondent’s petition for a hearing by the Supreme Court was denied October 30, 1957.