People v. Millwood

DRAPER, J.

In 1942, defendant-petitioner was charged with the crime of armed robbery. The information was later amended to charge him with three prior convictions. Originally he pleaded guilty, but was permitted to change his plea to not guilty. When advised that he was charged with three prior convictions, he refused to admit or deny them, asserting that he was entitled to plead double jeopardy as to the priors. The trial court, pursuant to Penal Code, section 1025, directed entry of denial of the priors. The case was tried by a jury, defendant was convicted and it was found that he had suffered the prior convictions as charged. More than 14 years after his trial, he petitioned the superior court for writ of error

coram nobis.

That petition was denied, and petitioner appeals.

The petition and the briefs in support of it are long and rambling. It appears, however, that petitioner’s principal contention is that the habitual criminal statute (Pen. Code, § 644) is unconstitutional in that it subjects a defendant to a second punishment for the prior offenses charged, and that his offered plea of former jeopardy as to the priors should have been received. But the statute does not subject a defendant to double jeopardy, and is constitutional

(In re Rosencrantz,

205 Cal. 534 [271 P.

902]; People

v.

Dunlop,

102 Cal.App.2d 314, 316-317 [227 P.2d 281] ;

People

v.

Floth,

8 Cal.App.2d 600 [47 P.2d 817]). Since the plea of former jeopardy is not an answer to the charge of prior convictions,

[156]

there can be no complaint of the trial court’s failure to enter such a plea. Appellant complains also that the information did not specifically charge him with being an “habitual criminal,” and thus did not notify him fully of the charge against him. This contention, too, has been disposed of adversely to his view