*1 13, 1974.] Bank. Mar. 16400. In No. [Crim. on Habeas Corpus. STEWART JENNINGS re THURLOW
Counsel Hicks, Cecil District Michael R. Assistant District Attorney, At- Capizzi, Sears, and Oretta D. torney, District for Deputy Attorney, Appellant. Williams, Jr., L. Defender,
Frank Public James R. Goff and Joanne Har- rold, Defenders, Public for Deputy Respondent.
Opinion
WRIGHT, C. J. from order an The Peopleappeal
a writ of habeas for the limited vacating purpose setting aside a sentence insofar as adjudicated defendant an habitual criminal. The adjudication was based on defendant’s of the truth admission of alle gations three Code, felony (Pen. (b).)1 convictions. subd. § (b), 1Penal Code section provides part: “Every in pertinent person degree convicted in robbery, burglary this State the crime of of the first . . . felonious assault deadly weapon with a . previously . . who have been shall convicted, tried, three charges brought times separately and who shall have served separate prison terms therefor state of the crime of rob ... bery, burglary adjudged . . . punished shall an habitual criminal and shall be by imprisonment prison in the state for life.” statutory All references are to sections of the Penal Code unless otherwise specifically stated. admissions court found defendant’s the trial In each that the fact of made. We hold and intelligently were not knowingly admitted convictions properly alleged prior as herein- for further the order. We remand cause proceedings reverse after directed. *3 the courts after a tortuous route in issues herein come before us
The convicted of armed robbery Defendant was with and below. (§211) (§ 459) of in the Orange County two counts burglary Superior that defendant had suffered three The information also alleged Court. convictions, Colo- the same armed in being robbery separate prior felony rado in California robbery in in California in 1959' burglary 1961. It was further that as to each of the convictions alleged in prior but defendant had served a in a state first denied term Defendant prison. The later admitted the truth of the convictions. allegations prior trial court found defendant to an habitual criminal under section (b), and he was sentenced to state for the terms pro- prison vided law with the run concurrently. sentence as each offense to (Dec. 1969) On was v. Stewart (People affirmed. judgment 4 Crim. unpublished.)2 in Sacramento facility in a state confined prison while January he on the ground corpus writ of habeas sought defendant
County, that the 1955 criminal in as an habitual had been sentenced improperly based in conviction, part, which the adjudication Colorado had not been timely that he invalid. He further complained thereof. An to the at of the admissions as consequences advised the time and, the district at which after hearing order to show cause issued Colo- invalidity behalf of the conceded in attorney People had that defendant conviction, court issued an order reciting rado true, in which, resentencing if entitle the facts would “alleged petitioner “the writ court then ordered Orange County.” Court of Superior of issued, Orange in the of Habeas returnable Corpus is transferred.” which court this cause County affirmance, first the writ of habeas 2Following response in to a court, the Court appellate the trial and then filed in court transferred Floyd (1969) light Appeal imposed reconsidered the sentences 5, 1970, May court appellate On purpose of resentenc judgment the limited reversed the remanded the cause for 12, 1970, Floyd. abstract of May a first amended ing in accordance with On effect of only as to the initial abstract was filed. It differs from the com deadly weapon the time of the with a at finding that defendant was armed the first amended robbery. convictions in The recitals as mission same as those the initial abstract. abstract treated the County in Orange transfer the Superior Upon in addition urged, counsel on its Defense for the writ merits.3 of ha- conviction, the adjudication. at the time to all in that criminality priors bitual was invalid was not convictions truth the prior admitted the allegations of his convic- in the event thereof advised as to added consequences of one or more of the criminal charges. tion an evidentiary hearing
The court conducted his admissions had been advised the consequences whether defendant found conflicting convictions. It of the truth of allegations stated that it would that defendant had not been advised and fully evidence of habitual criminality. vacate the adjudication *4 counsel asked court on of the 1955 validity
Defense next the to rule the of the Colorado conviction. The issue was submitted on certified copies relative to the Colorado and other documents reporter’s transcript pro- The court found that defendant had ceedings. knowingly, intelligently counsel, conviction waived the and that the Colorado voluntarily right sound. constitutionally its ab- determinations, the second amended court entered a Following recited, (see 2, stract fn. it is supra) contrary wherein judgment recitals, abstracts’ that crim- defendant was not an habitual adjudged within inal the of section 644.4 meaning 613, (In (1971) 3We proper deem this to be a 4 Cal.3d 624 procedure. re Crow 254, 1206].) challenges Cal.Rptr. prisoner collaterally [94 A validity Const., titling may of his county sentence do so in is confined. Cal. wherein he VI, 10; also, 1508.) Upon showing § § art. case prima see of a facie en resentencing, him to to the court render “the court should the case transfer
ing judgment hearing In re Haro conviction on the merits [citations].” added; 500], (1969) 1021, 588, Cal.Rptr. 71 Cal.2d 458 italics see P.2d 1025-1026; (1971) id. at pp. also In re Cal.3d 82-83 [98 Cortez 819].) Although P.2d court raise some order Sacramento validity as whether it made determination on merits conviction, suggests did 1955 Colorado the recital in the order that court it did purport to do so we conclude that not. appeal 4The the Petition for Writ People purport “from Order Jennings vacating adjudica Corpus of tion Thurlow Stewart to-wit: Habeas offender, entered in this Court habitual therein Stewart an stated, judgment August 1971.” an amended abstract of on As the court entered adjudged habitual criminal. This wherein is recited that defendant was not an record August on 1971. The abstract bears the date of and filed amended Orange County Superior Court appeal presented on discloses no order making arising of collateral writ out a proceedings. for the or otherwise direction August transcript, reporter’s on appears It from The contention that is to relief not entitled People’s his assertion he was not advised of the fully timely consequences .convictions, his admissions of the truth of allegations is well Yurko, ante, In re taken. In the case of page P.2d we announced a rule which judicial procedure requires rule, however, that an accused be so advised. That is applicable admissions made or after the the Yurko and defend filing opinion, ant’s admissions four by more than The order predate years. grant reversed, ing must be petition, accordingly, and the amended abstract 9, 1971, dated must be struck from August the record. of the trial court’s propriety ruling as the 1955 validity not, is conviction technically, before us. The have not the correctness of the challenged court’s that it was ruling valid and defendant could not order granting appeal presumed writ he very (Loustalot sought. (1947) 673].) P.2d not, moreover, We able to review the merits of the issue on this as all of the matters which the evidentiary trial court relied are not now before us.5 *5 1971, the setting adjudication court stated that was aside the of habitual crimi-
nality. Confusion to precise proceedings Orange County the nature the in the is heightened Court by the proceeding fact that the habeas trans- ferred to that court not was proceeding denominated a collateral as a but instead proceeding further the original within criminal action which was then final. response In to an application meritorious, for collateral to relief deemed be the directing, writ the case, should issue in the circumstances of the instant the vacation adjudication criminality. entry habitual of the amended abstract of judgment in proceedings apparently the criminal to compliance intended be in with such a amended abstract implied although direction contained in the but order the unissued finality should have been entered until the of the order con- taining that direction. The People’s appeal presumes notice of such collateral order had been made and the on this conducted have themselves accordingly. To any might insure that further confusion be avoided our order on appeal will with presumed deal both the the appeal from order the writ any proceedings necessary orders made in basic criminal to extent to fairly resolve presented appeal. issues on that, invalidity ground 5The of the 1955 Colorado conviction was claimed counsel, although right advised of his to he was not advised that if he could not afford appointed counsel one would be for Gideon v. Wain him. wright (1963) 733]; 83 re U.S. L.Ed.2d S.Ct. 93 A.L.R.2d Smiley (1967) 179].) 66 614-615 Attached copy excerpt transcript for the writ is in the of an transcript proceedings. appears Colorado It from that that after the court advised counsel, right response inquiry of the as to and in court’s further whether any be representation, desired defendant stated that “there doesn’t seem to need guilt during stated appointment for Thereafter defendant twice his [the counsel].” whether the substantial question is some that there further It appears against been has resolved conviction of the Colorado validity of the issue does Not is fair and just. a manner which defendant’s contentions in the Sacramento by was conceded that the it appear be deemed County Superior but Orange proceedings, convic- first held all That court views. divergent have expressed moot, thus issue was then, when tions were determined invalidly without, sound conviction was that the Colorado stated relative thereto. order making specific afford by best served the ends of will justice In view of foregoing to the Orange County Superior defendant the remand ing opportunity upon Cblorado convi validity raise issue again .6 ction the writ and the amended The order is reversed from the is ordered struck August abstract dated within after this days record. motion Upon conviction final, the becomes validity as a is to be redetermined. Sullivan, Roth, J.,* J., Tobriner, J., Burke, J., J., McComb, con curred.
MOSK, J.I concur. case, this
Lest it be majority deemed inconsistent to with agree (ante, and to In re Yurko concur and dissent in p. 561]) I P.2d the issue of find it necessary prospectivity, note the briefly distinction between circumstances petitioners
Yurko and Stewart.
As I out in and in Westbrook pointed my concurring dissenting opinion Mihaly 765, 839, v. (1970) 2 Cal.3d 471 P.2d 802-803 prosecu a discussion appears, of defendant’s It further alternatives. tion introduced to the waiver and court received additional documents relative being copy question, change plea certified a a copy same a of of judgment. at copy by To the latter is attached a of a made statement part the time the These documents have been made plea entered. years of At was 18 appeal. of the Colorado conviction defendant record time major age and had crime. not theretofore been with the 1955 Colorado con be 6Should defendant able to establish criminal, but an habitual would continue in his status as viction nevertheless subjected added to the lesser only felony convictions he would with two 644, (b). (a), than subdivision rather penalties section * Assigned by the of the Judicial Council. Chairman
487], there are three alternatives available to a state court which has fash- ioned a new (1) rule. It to acts rule: occurring apply subsequent to the (2) announcement to acts to the only; occurring an- subsequent nouncement and also to (3) or to acts present litigants; sub- occurring announcement, to the sequent to the also acts present litigants, which occurred to announcement. alternative, Westbrook and my Yurko the first colleagues adopted
which is clearly erroneous. In addition to the to the injustice litigant his talent and employs resources to the court to a new persuade pronounce rule, the theory results in a mere prospective-only rendering advisory opin ion, a procedure foreclosed to this court. my City Carmel- dissent by-the-Sea Young v. 259, (1970) 1, 2 Cal.3d 466 P.2d [85 Cal.Rptr. 225, 1313]; People Lynch A.L.R.3d ex rel. (1970) 1 Cal.3d 126]; Witkin, Cal. (2d 1970) Procedure 911.) was, ed. mayWe act if there is—or p. only the case of asserted mootness—a issue or justiciable involving duties rights to the litigation. Where we to vindicate tlie purport position litigant, then refuse to arbitrarily the rule of law the apply involved, very litigant mere advisory decides opinion emerges; nothing. has the effect of mere dictum. It fails to meet the challenge Justice Harlan in Desist v. United (1969) States 394 U.S. 259 [22 L.Ed.2d 261, 89 S.Ct. “it is (dissenting the task tins opn.): 1030] Court, other, like that of any to do to each justice litigant on the merits his own case.” (ante, 857).
That was the He re- posture petitioner p. for the should have been done to him on new rule and justice sponsible the merits his own But Stewart’s comes before us case. case after rule, dictum, if decision in Yurko established new majority even factor, and made the rule decisis becomes a even Stare now prospective. denial of Stewart though fortuity relief results from petitioner chronology. Indeed,
This situation is not United States unique. Supreme itself (1967) addressed in Stovall v. Denno identical problem U.S. L.Ed.2d S.Ct. I find Justice convincing: Brennan’s for the court in that case to be “We disposition *7 are, therefore, that victims of recognize Wade and Gilbert pre trial confrontations in the absence of their have the benefit of counsel to the rules established in cases. must be that benefit given their That they is, however, an unavoidable constitutional necessity consequence adjudications stand as mere dictum. Sound of decision-making, policies we resolve III of the Constitution in the command Article rooted effect controversies, and in or possible in concrete cases solely issues a change requiring contentions the incentive to counsel advance the benefit law, and Gilbert militate Wade against denying the benefit according decisions. results today’s arguably Inequity is but not announced in the case in which new rule to parties have trial or process situated in the litigants appellate other similarly involved that the raised the But we the fact regard same issue. cost to sound as an for adherence prin chance beneficiaries insignificant omitted.) (Fns. decision-making.” ciples the more than four admissions
Since Stewart’s predate he is denied relief. years, properly denied
Petitioner’s 1974. rehearing April application