George Thomas Bevins v. John H. Klinger, Warden

BEVINS, George Appellant, Thomas KLINGER, Appellee. Warden,

John H.

No. 20407. Appeals United Court of States Ninth Circuit.

July Rehearing Aug. On

George Padres, Thomas Los Cal., pro. per. Atty. Gen., Lynch, William

Thomas C. Atty. James, Gen., Thomas Ker- E. Asst. Angeles, rigan, Deputy Atty. Gen., Los Cal., appellee. Judge, MADDEN, United

Before Claims, and BARNES States Court of Judges. ELY, Circuit BARNES, Judge: Circuit appeal of a This is an from a denial writ of the United habeas States District Court for the Southern Division, California, District Central the state after conviction and courts. pursuant to

Jurisdiction existed below pur- exists here 28 U.S.C. to 28 suant U.S.C. § placed on our Since this case has been leave, calendar, requested appellant has every writing, drop conten- other “to my my regarding and abandon case tion adjudication excepting for the

Act.”1 the Habitual Criminal

1. separate Penal Code 644: served and who shall have “644. criminals; prison Habitual any im- terms therefor life prisonment; exceptional penal cas- institution either federal and/or in es, court; elsewhere, discretion or of the crime this State effect penalty burglary, burglary death robbery, ex- with (a) Every person rape violence, plosives, convicted in ar- this with force or State robbery, burglary son, murder, the crime of com- intent assault with degree, burglary theft, the first murder, grand bribery with of a ex- mit plosives, rape violence, with public official, perjury, force or ar- subornation son feloniously wrecking, defined in perjury, Section re- 447a of this train code, murder, ceiving goods, assault with assault intent felonious stolen murder, commit wrecking, deadly extortion, weapon, train kid- feloni- with a deadly ous weapon, escape assault with naping, mayhem, from a state ex- tortion, kidnaping, escape sodomy prison, rape from a state fornication or or prison by dangerous age use of force or under the or of a child or carnal abuse deadly weapons, rape any punishable years, or fornication under or act of 14 or sodomy conspiracy or code, carnal abuse of a child under 288 of this Section age years, any punish- of 14 any act afore- or more of the commit able adjudged code, under Section felonies, 288 of this con- shall be mentioned spiracy to commit punished one or more of criminal and shall be felonies, prison aforementioned by imprisonment who shall in the state previously have up- life;” twice convicted charges separately brought on tried, Taylor, against him, prove no for the state obligation produce proof of the California the state foreign court the nature of convictions. State decision which sup- appeal.2 In now desires to rest Taylor, supra, defendant admit- assignment appel- port of of error IV the burglary in ted two convictions for lant here out that Oklahoma in and a simi- 1939 and had three where the defendant admitted burglary lar conviction in California felony convictions, which two of Taylor points in in 1947. The court foreign convictions, said the court out that the convictions admitted three 170): (155 28, Cal.App.2d 317 P.2d at at coming prove did not three convictions proof the no that “Since there was 644(b) of within section the California prior foreign the meet two convictions Taylor opinion on went Penal Code. The requirements minimum of the habitual 169): (155 Cal.App.2d 28, at 317 P.2d finding statute, de- criminal that the California, burglary “In is commit- is cannot fendant an habitual offender specified entry the certain ted into Tay- Although permitted be stand. to structures ‘with intent to commit having pre- lor admitted the suffered grand * * larceny any petit or alleged in- vious in the convictions as Pen.Code, *’. Under formation, is not to construed this be statutes, degree first the Oklahoma burglary the admission that breaking and defined as the compe- two are Oklahoma convictions entering dwelling of an- house into the finding support is an tent to a that he nighttime in the ‘with intent other meaning criminal within 21 therein.’ Okl.St. commit some crime (6).” 644, section subdivision requisite [p. Ann. 1431 The 563]. (Notes omitted.) degree burglary anis intent for second al- he then what (sections crime’ ‘intent to commit some leges language People contrary in [p. 567], [p. 567], [p. 1434 1432 1433 Cal.App.2d Gillette and 506, 171 degree 568]), except bur- second that (wherein (1959), 341 403 P.2d may glary committed also be robbery this defendant’s conviction of breaking entering certain into and felony, deadly weapon, af- with a specified ‘with intent structures firmed) : steal therein or to commit “When admitted a defendant has [p. felony.’ 1435 21 Okl.St.Ann. § require- prior conviction, there is no merely al- The information 568]. prosecution produce that evi- ment leges that was convicted defendant dence of nature of conviction.” felony’ ‘burglary, Oklahoma incon- These two law are statements in 1939 that he serv- and and must read sistent on face. But their we prison ed each conviction. terms on opinion; on facts the rest of each convic- The records of the Oklahoma based; and which such statements were may well are us. tions not before estab- the law relied which each prosecuted un- that be defendant was pro- validity respective their lish permit con- der the statutes which nouncements. breaking burglary and viction entering to commit some with intent if, agree that think would We theft, petit than misdemeanor other trial, prior con- on his he had admitted presume on we must victions, further, that had admitted of- that he was the least convicted enu- said convictions were for offenses Lohr, Cal.App.2d People fense. 644 of the California merated section 397, 399, See, also, Code, no issue there would be P.2d 615. Penal then brief, way Appellant, filing ruling state court after the of his his favor and way against court, writing, “My advised entire another me.” this case is based Richardson, P.2d cases omitted.) Figuieredo, (Notes cited.3 169 P.2d 44.” See also P.2d (author opinion Justice Shinn of the (1956)4 Taylor) then followed with the state quoted by appellant (155 ment authority above Cal. As admission of that App.2d 167), pointed convictions waiver defend is a out ant, relieving case was prosecution be re from the proof manded for proving they further of the nature burden of fall within taking place under California Penal Justice Fox Code § Oklahoma law. (author opinion in of the v. Gil Bevins, supra) lette and cites authority As there can no be Herod, 247 P.2d waiver resting burden (1952),5 McConnell, prosecution, Justice Shinn cites and Pearson, relies 578, 580, 195 (1948),6 In 871, re P.2d 34 30 Cal.2d Herod, 764, 3. In re Pearson 5. was decided in v. 112 247 1947. The appeal Seeley, (1952), cases cited are: In P.2d an from re 127 was a 29 Cal.2d (1946); 176 P.2d 24 In denial of a writ coram nobis. re McViek of error ers, supports (1946); 29 Cal.2d 176 P.2d Eox’s statements with 40 Justice Harincar, following language In re and citations: 29 Cal.2d 176 P.2d (1946); Wolfson, the District At re Cal.2d “The contention that carry (1947). torney 180 P.2d 326 failed burden of to his proof cases,” says prior These “last-cited as to the convictions Justice supra, Pearson, Sehauer in in likewise cannot be determined these “establish that petitioner proceedings. may ‘a is no such attack There burden and secure relief here, corpus proof when, in habeas from an as defendant erroneous ad- judication open in admitted court. habitual criminal the convictions status Cal.App.2d 533, 536, Stone, appearing, where the facts either from 701; Gilliam, by satisfactory 159 P.2d 860, In re 26 Cal.2d record face of proof, show a When a defend that matter 161 P.2d 793. as law the prior prior conviction of a ant admits requirement there is no crime which convictions does prosecution pro not meet the that definition of an in- offense (In Seeley, in con cluded said 644.’ duce evidence of nature of the section re supra [p. McConnell, Cal.2d, victions. 86 Cal. 299 of 29 176 P.2d 28].” (Emphasis ques added.) App.2d 195 P.2d 34. The Pearson, prior We note tion leged al that In re whether convictions is a parts 4—3 decision II to committed in Texas as to in have been opinion. portions quoted All were in was deter felonies are above parts from in court H III. The mined admission three concur- defendant’s ring pro (Spence, open in Justices is not review these Edmonds to Traynor) McVicker, ceedings. People in Cal. concurred the result acceptance 1110; People parts App.2d 470, 473, their P.2d I and IV opinion, Harinear, Cal.App.2d 594, opinion and were of that parts Moreover, “wholly II and 121 P.2d prior four of the III were unneces- 751. sary” alleged opinion. to in Amend Burglary ed Information for Hagan appellant. 4. Here sole was the He Theft. These two for Grand other charged robbery. was with two counts among are 644(b) mentioned section those prior felony alleged Eour convictions were upon which of the Penal Code against him, and admitted. Defendant adjudicated may one be was On twice convicted. his con- (112 (Notes omitted.) criminal.” Cal. petition victions were affirmed. On App.2d 128.) P.2d at question habeas he raised no toas McConnell, the effect of of four his admission felony convictions, a direct nor whether there was 195 P.2d by proof they California, robbery for a con- were felonies but Edwards defendant only charged two that “of with lack of to service of viction. had been He 1928; separate imprisonment.” priors: (p. in Kansas in terms of “auto theft” 809) kidnaping in Edwards Kansas important charged only here conviction Thus this case is admitted each urged respect procedures appeal he that “au- with for remand. trial. to On adversely Lyle, Fox and decided Justice petitioner’s present (1937).7 assertions: “Relying People Morton, goes opinion on to Justice Fox’s 523, appellant Cal.2d 261 P.2d burglary consider the Nebraska law as burglary out before receiving stolen as to and the Iowa law properly conviction in Nebraska could falling property, a crime and finds each adjudging be considered in him an 644.8 Code California Penal within burglary habitual criminal the crime of case, and of this This becomes the law substantially Nebraska must have describ matters eliminates one of the two the same elements as the crime of bur- (see Pearson, supra italicized ed in In re argues glary in California. He re supra), permitting portion of note 3 the elements of the crime are not the through prisoner lief to jurisdictions. same in the two aBut corpus. Fox was writ habeas Justice comparison defining of the statutes able, by study law of the Nebraska burglary clearly in the two states re- burglary, had a to determine argument. futes his has What burglary 644— fell statute that within burglary appellant’s said about convic- make the Justice Shinn was not able generally applies tion in Nebraska finding respect the Okla same with receiving his conviction in Iowa for supra. burglary homa law of property. stolen There can be no pos has thus but doubt that the trial court was entitled sibility from his reliance left to take both of these admitted felonies re supra (based adjudging on In Taylor, appellant in turn into account in V. e., presentation of Pearson, supra), i. the criminal under Penal Code proof law satisfactory (People as a matter that section Gillette and 644.” v. prior of crimes Bevins, Cal.App.2d were convictions 341 P. the 403.) of an definition which did not meet the 2d at This bur in said 644. offense included § any attempted au- We have to examine petitioner a habeas in den is thority subsequent in to both California prosecution, as it proceeding; the not on People People supra, and v. v. place. took trial until waiver was at the supra. People Bevins, Gillette and question petitioner Taylor, supra, now cited but three The same has been appeal, to raise was raised on the times since 1957.9 seeks felony Un- to theft” was not a crime mentioned in which were thus described. circumstances, appellant im- if Cal.Penal Code and that his der these required prisonment in a industrial reforma- that was state considered evidence tory imprisonment acquaint in nature was not a state trial court with the the prison. previous in is no merit this con- had “There of the crimes which he committed, duty imposed tention since defendant admitted them. People the was Cal.App.2d Soto, This De him then to submit such evidence. 92 P.2d 466.” and it now too late he failed to do ap- complain for the first time on this 132, 137, Lyle, 7. peal in alone was that evidence which he presents (1937), the the- P.2d and he have interested which should ory (And of waiver the defendant. presented was not submitted.” quoted in and v. Gillette disregarded judge trial noteWe 398.) Lyle went into The court then by appel- prior conviction admitted third some detail: Dyer namely trial, a federal lant at full information contained a and “[T]he not be- Act That is therefore violation. complete description prior of- case, involved nor it this fore us judgments fenses, the courts wherein Dis- in the direct the California pronounced, conviction were the dates Appeal. trict Court of judgments, fact that in of said and the Stanphill, (1) punishment therefor each instance as (wherein designated unau- P.2d 270 term in a served a proof Appellant expressly penal and uncertified thenticated institution. presented alleged prior prior was convictions convictions of admitted three felony under California in California fense was At least later case legal theory inferentially supports law. When admits the he purposes (a) previous for all offenses conviction does so when the he qualifies convictions; (b) the admission where the unless he courts thereby putting (c) particular place; the dates some took Niles, proof.” People (d) judgments; fact there Cal.Rptr. 758-759, punishment separate are terms added.) (Emphasis proof (1964). forth, of all those all set then proves admission facts the defendant’s Bevins, supra, v. Gillette doubt, beyond a reasonable the issue rehearing petition was denied for therefor removes existing burden pe Appeal; and a Court of the District go prosecution further on the Supreme hearing by for a tition proof. in its August denied was Court 19, California to the certiorari 1959. A we are not here concerned “While Supreme States of the United Court (Pen. criminal law with the habitual (363 80 S.Ct. U.S. denied Code, 644) and thus are not involved cited (1960)). has been L.Ed.2d 1729 quo- problem indicated in the with the opinions, but subsequent times in seven from In tation heretofore made re point involved.10 here never 264, 176 P.2d 40 McVickers C.2d [29 that, (1946)], if the still it is clear People Niles, supra, has been cited point appropriately raised had been once, again, point but on a not here in- court, have would the trial volved.11 prove appellant’s been holdWe the two cases—Bev Louisiana, conviction in for what People Niles, ins’ own su ‘manslaughter,’ denominated pra, define the law of California. We conduct which have could not general legal if believe the is that felony, rule punish as a did not object defendant desires to to the or under some either under the same charged, conviction he do so at the must However, think that we other name. may (so prosecution trial that the then question defendant, he desires if put objection proof), prior on its if no be and his the character of- of felonious made, has his then defendant waived be fense, law, as tested must California objection, subsequently and raise it can call that issue to the attention of only by corpus proceedings. habeas court, trial at is ar- either the time he obligation upon him such rests raigned event the allegation prior of of his con law, to establish the correctness conviction, or at the time sentence. of has, of tention that he as a matter here, If, prior as he admits the right. deprived of a constitutional charged, object as he cannot thereafter authority Inof re Pear- And under the of- made that the not fixing references aid us solv- judge None of these sen- to the trial at the time of ing problem. tence, the instant habitual crim- retrial of the ordered). inal sentence was 822, People Bond, 10. v. 179 People Vossbrink, Cal.App. (2) v. 189 People Bly, Cal.Rptr. (1960); v. 4 446 Cal.Rptr. 677, 11 recites 2d 857 Cal.Rptr. Cal.App.2d 352, 358, 12 191 merely general minimum rule that People McGraw, (1961); 191 Cal. 542 v. foreign of offenses are sub elements 881, Cal.Rptr. (1961); App.2d 876, 44 13 stantially minimum similar to the ele 754, Wyback, v. 193 Cal.Rptr. of 758, (1961); ments the crimes listed the section 14 501 Cal.Rptr. (189 Cal.App.2d 679, Johnson, Cal.App.2d 624, 629, at 11 21 Cal. 203 Jordan, Rptr. (1962); 204 857), procedure 650 and describes the for a Cal.Rptr. 788, 782, 22 731 trial new limited to the habitual criminal Cal.App. Gonzales, (1962); (189 Cal.App.2d Cal.Rptr. 681, issue 41, 49, Cal.Rptr. (1963). 2d 857). (3) Annotation, Jenkins, A.L.R.2d (1961). Cal.Rptr. (1965). Tay- probation officer set son, to the supra, relied hearing January 3, 1958. On the (a) for lor, in the the facts neither appellant pe- allegations for re- latter date counsel record, (b) in the nor get show, quested file, in order matter continuance as a on tition or briefs fact, application probation for on (nor of for file.” a matter law of ad- matter), through counsel, appellant, Thus waiv- not meet did of crimes which mitted were right his ed to immediate sentence. offense included of an the definition ap so, done But even had he not California Penal Code § pellant's position pro is based of cor- writ habeas denial of the The Code, of visions Penal California pus is affirmed. amendments, read as it to the 1951 ap which were in effect at the time of Rehearing Appellant’s For Petition On pellant’s (That sentence. amendment rehearing as- Appellant’s for gave judge authority to the trial to ex failed consider this court serts that judgment pronouncing tend the time for assignments thirteen of his twelve beyond twenty-one days, plus days ten de- his from a error contained judgment.) for an arrest habeas petition for a writ nial appoint The court “must a time for court. This be- district * * * pronouncing may judgment, misinterpretation a letter cause of a proba- further extend the time until court, by appellant in- to this written report tion officer’s is received until terpreted by us as waiver all denying proceedings granting or for applicability to save the probation disposed have been of.” West’s Act. California Habitual Criminal Penal Annotated Code § rehearing granted. petition for a is The added.) (Emphasis and Note. previous opinion modified Our though Even en- defendant not following: addition of the eligible probation, titled to or even Assignments I, and IV dis- II “may the court in his discretion refer previous opinion in our cussed in detail probation the matter to the officer adversely disposed appellant. investigation of the facts relevant Assignment III relates to comment to sentence.” Calif.Penal Code § failure to take the stand. defendant’s last ¶. relies on Griffin State Assignment Thus of Error V is with- California, 609, 85 380 U.S. S.Ct. out merit. (1964). In Tehan L.Ed.2d Shott, rel. United States ex U.S. Assignment appel VI rests on 15 L.Ed.2d 453 S.Ct. lant’s conclusion that he “was convicted (1966) Supreme held Court Grif- solely testimony Inspector Wig have, require, and rule did not did not fin gins.” ap The recital of facts in the retrospective application. pellate opinion ap court’s on his direct delay Assignment peal beyond appel claims V demonstrates doubt conviction, fifty days after lant’s sentence conclusion is false. Gil awaiting judge probation while lette and report, counsel, or convenience of is a de 341 P.2d 398. Therein is described appellant’s by process. nial of The on file due identification the witness Wood, the discloses this state court recital of the head food clerk the Safe way facts: store robbed whom at the 6, 1958,1 point gun. Appellant of a on his “On December the date direct appeal questioned which the verdict was returned the value Wood’s positive identification, by asserting exercise of its court in the discretion Wood (Penal 1203) referred matter “was an Code unreliable witness” because appears petition. appellant’s “1958” should be “1957”. agree gun.” with We to record between his “fear failure conversations appellate evidence was court counsel and court at the bench. competent, and more than sufficient Although as- neither these last two theory appellant. has no His convict the signments ap- included in of error were merit. pellant’s petition below, have exam- we ined them and find them to be without statement, Wiggins’ Nor was merit. given by the time to him defendant at Finding error, appel no the denial of the arrest, because inadmissible corpus, upon writ of habeas reconsidera- attorney. no This is not an lant had tion, is affirmed. case, Escobedo and if it were Johnson Jersey, 719, 86 384 U.S. State New (decided 1772, 16 L.Ed.2d 882 June

S.Ct. 20, 1966), disposes of the matter.

Assignment Ap- VII is merit. without pellant’s petition discloses his reason guilty already plea. had one life He hanging him, another over sentence supposedly consequence of little him. POSTELWAIT, Gilbert F. Appellant, Assignment VIII relates to al leged representation inefficient coun WILLINGHAM, J. T. Warden, United during sel at certain times court Penitentiary, States Leavenworth, proceedings. face, charge is On its Kansas, Appellee. present insufficient the issue as to No. 8835. representation gross whether the was so United Appeals States ly inadequate Court of incompetent as to taint Tenth Circuit. unconstitutionality. the conviction with Sept. 12, 1966. Assignment IX relates to prose notice of an intent cutor to invoke the Habitual Criminal person required given

Act. No to be notice that if he commits a crime certain charges may follow. was not charged separate offense; with a he was given judicial hearing at his trial applicability of the Act. We know given of no notice law to be malefactors, other than the notice im plied law, all to peril. know the at their Assignment alleges X unseasonable ar-

raignment. Appellate The California already Court has point, ruled on this holding by appellant by a waiver lack of objection. 341 P.2d Assignment alleged insufficiency XI evidence, Assignment XII is alleged prosecution’s (a) pre- errors argument (b) evidence, sentation of jury, (c) argument to the as to what be, (d) the sentence should error in

Case Details

Case Name: George Thomas Bevins v. John H. Klinger, Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 26, 1966

Citation: 365 F.2d 752

Docket Number: 20407

Court Abbreviation: 9th Cir.