In re JACOB WOLFSON, on Habeas Corpus
Crim. No. 4757
In Bank
Apr. 29, 1947
20 Cal.2d 20
Rоbert W. Kenny and Fred N. Howser, Attorneys General, and David K. Lener, Deputy Attorney General, for Respondent.
SCHAUER, J.-By application for relief through the writ of habeas corpus petitioner attacks the adjudication that he is an habitual criminal, punishable under
It appeаrs that petitioner was charged with the primary offense of grand theft, allegedly committed on or about August 3, 1943, and with three prior convictions of felony, as follows: “Entering and Larceny” in Pennsylvania in 1913, for which he allegedly served a term of imprisonment “in a penal institution“; “Larceny and Receiving Stolen Goods” in Pennsylvania in 1930, for which he allegedly served a term “in the State Prison“; “Forgery” in New Jersey in 1923, for which he allegedly served a term “in the State Prison.” Petitioner pleaded guilty to the primary crime, denied the 1913 prior conviction, and admitted the 1930 and 1923 prior convictions as charged. The trial court found that petitioner had suffered the 1913 prior conviction. It rendered its judgment of conviction of the primary offense, recited the three prior convictions suffered by petitioner, and declared that petitioner “is adjudicated to be an habitual criminal.” It is such determination of status that petitioner attacks.
The pertinent provision of
A prior conviction under the law of a sister state can support a California adjudication of habitual criminality only if the minimum adjudicated elements of the foreign offense meet the minimum elements (as defined by the California statute in effect on the date of the commission of the foreign crime) of a California offense which was enumerated in
Where an adjudication of habitual criminality is attacked through application for habeas corpus it is now settled that this court will look to the judically noticed law of the sister state* and to documentary proof of the foreign conviction (authenticated copies of the foreign prison record, commitment, judgment and indictment) to determine what were the adjudicated elements of the foreign offense. (In re McVickers (1946), supra, pp. 279, 280; In re Seeley (1946), supra, p. 299; In re Harincar (1946), supra, p. 406.)
The findings that petitioner was convicted merely of “Larceny” in Pennsylvania in 1913 and in 1930 are not findings that he suffered prior convictions of the California offense denominated “grand theft” and enumerated in
Petitioner and respondent have introduced in evidence authenticated copies of the Pennsylvania indictments
Respondent has introduced in evidence a certified copy of Philadelphia indictment No. 930, September sessions, 1913. He urges that this document shows a prior conviction of grand larceny within the purview of
From the 1913 Pennsylvania indictment and commitment it further appears (and it was proved to the California trial court) that in case No. 929 petitioner, in Philadelphia County, was also charged with and pleaded guilty to entering a building on September 24, 1913, with intent to steal personal property, and that he was sentenced to “undergo imprisonment in separate or solitary confinement at labor, in the Philadelphia County Prison, for the term of Two (2) years.” The adjudicated elements of the offense of which petitioner on his plea of guilty was convicted, are identical with those of the then California felony of second degree burglary as defined by the pertinent statutes. (
Petitioner contends that for the 1913 Pennsylvania conviction he did not serve a term in a state prison or federal penitentiary as required by
However, the determination of service of a term of imprisonment, a necessary part of the determination of habitual criminality, “does not involve the validity or finality оf a judgment of conviction, as such,” and both petitioner and respondent, as already stated, may refer to matters outside the California judgment roll in order to show the actual status of petitioner. (In re McVickers (1946), supra, pp. 271, 272, 279 of 29 Cal.2d; In re Seeley (1946), supra, pp. 298, 299 of 29 Cal.2d.) Here, as the California record of proceedings at the time of sentence shows, it was proved to the trial court that petitioner served the term in the Philadelphia County Prison and the trial court concluded that such imprisonment satisfied the requirement of
One found guilty of entering with intent to steal in Pennsylvania in 1913 was punished by fine and “imprisonment by separate or solitary confinement at labor not exceeding ten years.” (1863, April 22, P.L. 531, § 2; 18 Purdon‘s Pa.Stats., § 4901, Historical Note.) There were in Pennsylvania “state penitentiaries” wherein were imprisoned offenders sentenced to “imprisonment at labor, by separate or solitary confinement, for any period not less than one year” (19 Purdon‘s Pa.Stats., § 1021) and there were “county
The operation of the penal system as it applied to one in petitioner‘s position has been explained by a Pennsylvania court (in Com. v. Arbach (1934), 113 Pa.Super. 137 [172 A. 311]) as follows:
“The sentencing of convicts both as respects the term of imprisonment and where they shall be confined is fixed by statute. An examination of the penal clauses affixed to offenses by the Penal Code of 1860 (March 31, 1860, P.L. 382) will show that certain crimes or misdemeanors are punishable by ‘imprisonment,’ without more, or by ‘simple imprisonment.’ These mean confinement in a county jаil or workhouse. Com. ex rel. Stanton v. Francies, 250 Pa. 350, 352, 95 A. 798; Com. v. Fetterman, 26 Pa.Super.Ct. 569. Certain other crimes are punishable by imprisonment at labor, by separate or solitary confinement, or by separate or solitary confinement at labor. These mean confinement in a penitentiary, except as hereinafter stated. Id. The Criminal Procedure Act of 1860 (March 31, 1860, P.L. 427) divides sentences for penitentiary offenses into two classes; (1) Those for a period of a year or longer; (2) those for less than a year. As to the former, it provides in section 74 (as amended by Act of February 28, 1904, P.L. 25 [19 PS sec. 1021]) that: ‘Whenever any person shall be sentenced to imprisonment at labor, by separate or solitary confinement, for any period not less than one year, the imprisonment and labor shall be had and performed in the state penitentiary for the proper district: Provided, That nothing in this section contained shall prevent such person from being sentenced to imprisonment and labor, by separate or solitary confinement, in the county prisons now or hereafter authorized by law to receive convicts of a like description.’ This proviso . . . does not give a court the power to elect to sentence a person, who
has been convicted of a crime punishable by imprisonment at labor by separate or solitary confinement, to either the penitentiary or the county jail or prison, except in two instances: (1) Where the act defining the offense and fixing the penalty expressly gives such option1 (see Criminal Code, inter alia, sections 4, 5, 20, 23, 41, 78, 98, 127, 128 [18 PS secs. 260, 253, 552, 2934, 2281, 2225, 2112, 211, 2451]; or (2) where the county prison to which the convict is sentenced comes within the language of the proviso, and was in 1860, at the passage of the Criminal Procedure Act, or afterwards, ‘authorized by law to receive convicts of a like description,’ that is, convicts sentenced to imprisonment at labor, by separate or solitary confinement. Thus by Act of February 8, 1842, P.L. 14, sec. 11 (19 PS sec. 1022), it was provided that: ‘Every person who shall hereafter be convicted in any court of criminal jurisdiction, in the city or county of Philadelphia, of any crime, the punishment of which would now be imprisonment in the state penitentiary, may be sentenced by the proper court to suffer imprisonment, by separate or solitary confinement, at labor, either in the state penitentiary, or in the Philadelphia county prison, at the discretion of the courts, excepting in cases of murder in the second degree, and manslaughter.’ The Philadelphia County Prison comes within the proviso of section 74 of the act of 1860, supra, as being ‘now [that is, in 1860] . . . authorized by law to receive convicts of a like description.’
“Section 75 of the Criminal Procedure Act of 1860 . . ., 19 PS sec. 891, governs sentences to imprisonment at labor by separate or solitary confinement, for a period of less time than one year, and provides that: ‘No person shall be sentenced to imprisonment at labor by separate or solitary confinement for a period of time less than one year, except in the counties where, in the opinion of the court pronouncing the sentence, suitable prisons have been erected for such confinement and labor: . . . Provided, That in the counties wherе suitable prisons for separate or solitary confinement at labor do not exist, and the sentence shall be less than one year, simple imprisonment shall be substituted in all cases for the separate and solitary confinement at labor required by the act . . .’ It also provides that all persons sentenced to simple imprisonment for any period of time shall be confined in the county jail where the conviction shall take place.
“This section gives the court in any county, where in its opinion a suitable prison has been erеcted for furnishing convicts with separate or solitary confinement and labor, in imposing sentences for less than a year upon persons convicted of crimes which require, as a penalty, imprisonment in a penitentiary, power to sentence them to separate or solitary confinement at labor in such suitable county prison; and if there is no such suitable county prison, to sentence them to simple imprisonment in the county jail. It has no application at all to sentences for a year or longer, which, whether thеre be a suitable county prison or not, in all crimes requiring a penalty of imprisonment at labor, by separate or solitary confinement, must be to the penitentiary of the proper district, unless the county prison is by law authorized to receive such convicts. Section 75, of itself, does not furnish such authority, except as to sentences for less than a year.”
It thus appears that petitioner, necessarily sentenced to separate imprisonment at labor, and in fact sentenced to two years of such imprisonment, must have served his term in a Pennsylvania state penitentiary had he been so convicted and sentenced in some county other than Philadelphia. So far as petitioner and other offenders similarly sentenced were concerned, occupance of the Philadelphia County Prison, because of “the character of the institution and its inmates together with the nature of the proceedings leading to confinement therein,” was equivalent to service of time in a state prison or federal penitentiary. (In re Gilliam (1945), 26 Cal.2d 860, 863-864 [161 P.2d 793], and cases there cited; see State v. Clementi (1937), 224 Wis. 145 [272 N.W. 29, 33]; State v. Blankenship (1943), 242 Wis. 195 [7 N.W.2d 424]; State v. Jardine (1943), 242 Wis. 200 [7 N.W.2d 426].)
The 1930 conviction, in Delaware County, Pennsylvania, was upon petitioner‘s plea of guilty to the charge of larceny of described clothing of the value of $38.50 and on the same day feloniously receiving the same goods knowing them to have been stolen. In Pennsylvania “In every indictment for feloniously stealing property it shall be lawful to add a count for feloniously receiving the said property, knowing it to have been stolen; . . . and it shall be lawful for the jury trying the same to find a verdict of guilty either of stealing the property, or of receiving the same, knowing it to have been stolen . . . .” (1860, March 31, P.L. 427, § 24; 19 Purdon‘s Pa.Stats., § 411.) Under this statute a defendant cannot properly be convicted of both receiving stolen property
Petitioner now seeks to go behind, not merely the California determination of the 1930 prior conviction of receiving stolen goods, made on petitioner‘s admission of such conviction, but behind the Pennsylvania judgment rendered on his plea of guilty. He seeks to show that in fact the Pennsylvania charges of larceny and of receiving stolen goods were based on one criminal act of petitioner, and that such act amounted to larceny exclusively. This he cannot do. ”
It has been suggested, as to the 1930 Pennsylvania conviction, that we must assume that petitioner pleaded guilty to and was adjudged guilty of the least offense charged in the Pennsylvania indictment. But it does not appear that the crimes charged were mere alternate statements of the same acts or that either was in fact included in the other. On the face of the pleading they were distinct offenses and petitioner, as stated, could have been guilty of both. Furthermore, it cannot be determined by reference to punishment that one of the offenses charged in Pennsylvania in 1930 was “less than” the other. As already stated, larceny was punishable by separate or solitary confinement at labor for not more than ten years; receiving stolen goods was punishable by “like pains and penalties which are by law imposed upon the person who shall have actually stolen . . . the samе” (1909, April 23, P.L. 159, § 1; 18 Purdon‘s Pa.Stats., § 4817, Historical Note); and petitioner was sentenced to undergo imprisonment by separate and solitary confinement in the Eastern Penitentiary for two to four years.
Petitioner contends that in any event a conviction of receiving stolen goods in Pennsylvania in 1930 is not avail-
Problems similar to that presented by petitioner‘s last stated contention have arisen in Indiana and it has been held that “where the previous оffense relied upon was committed in another jurisdiction, proof that the punishment prescribed by the law of that jurisdiction consisted of death or imprisonment in the state prison of that jurisdiction will sustain the allegation that the offense relied upon was a felony. Kelley v. State (Ind.Sup. 1933) [204 Ind. 612] 185 N.E. 453, 458. Proof that the punishment actually imposed for the offense committed in another jurisdiction did in fact consist of imprisonment in the state prison of that jurisdiction will also sustain the allegation that the offense relied upon was a felony.” (Dougherty v. State (1934), 206 Ind. 678 [191 N.E. 84, 88].) We agree with the conсlusion of the Indiana court. The offense which petitioner was adjudged to have committed in Pennsylvania in 1930 and the punishment which he there underwent are shown to be substantially equivalent to the California crime of receiving stolen goods punished by imprisonment in a California state prison, i. e., to the
For the reasons above elucidated we hold that petitioner is a person properly determined to be an habitual criminal who has suffered two previous convictions within the purview of
Since petitioner has not shown that he is presently entitled to release the writ is discharged and he is remanded to custody.
Gibson, C. J., Shenk, J., and Carter, J., concurred.
SPENCE, J.-I concur with the conclusion reached in the majority opinion that the writ should be discharged and that the petitioner should be remanded to custody. I still adhere, however, to the views expressed in my dissenting opinions in In re McVickers, 29 Cal.2d 264, 281 [176 P.2d 40], and In re Seeley, 29 Cal.2d 294, 303 [176 P.2d 24], and base my concurrence here upon those views rather than upon the views stated in the majority opinion. As stated in the dissenting opinion in In re Seeley, supra, at page 317, I believe that the scope of review in this proceeding on habeas corpus, where it is sought to attack the validity of the judgment adjudicating petitioner to be an habitual criminal, “extends only to the question of the jurisdiction of the trial court to make the habitual criminal adjudication; that the inquiry does not extend beyond the face of the record in the criminal proceeding in which such adjudication was made; and that if it does not affirmatively appear from the face of such record that the trial court was without jurisdiction to make such adjudication, then the habitual criminal adjudication should not be nullified.”
Edmonds, J., and Traynor, J., concurred.