People v. Keller

GRIFFIN, J.

Defendant and appellant, on October 18, 1955, was charged in an information, in one count, with the crime of burglary, and in a second count with robbery. It was likewise charged therein that he had suffered four prior convictions, to wit, on January 18, 1946, the crime of robbery, second degree; in July, 1946, assault with a deadly

weapon;

on February 27, 1950, burglary, second degree; and on February 27, 1950, grand theft. It is also alleged as to each such prior felony conviction that appellant served a term of imprisonment therefor in the state prison at San Quentin. Defendant was represented by his own counsel, a lawyer having many

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years of the actual practice of criminal law, and entered a plea of not guilty to the charges. In person, and through his counsel he admitted the four prior convictions as thus charged.

A jury trial resulted in a verdict of guilty on both counts. He was, on November 15, 1955, sentenced to state’s prison, sentences to run consecutively on each count, and consecutively as to any incompleted sentence. He was also adjudged to be an habitual criminal under section 644, subdivision (b) of the Penal Code. No motion for new trial was made, and no appeal was taken from the judgment.

On October 2, 1956, nearly one year later, defendant filed in the superior court, a “Petition for Writ of Error Coram Nobis, and Motion to Annul, Vacate and Set Aside the Judgment” alleging the trial judge lacked jurisdiction to adjudge him an habitual criminal by accepting a plea to his previous felony convictions without proving that he had served prior terms upon separate sentences in a state’s prison, and upon charges separately brought and tried. It is further claimed he was denied effective and competent aid of counsel in that he was “ill advised to admit his prior convictions,” as alleged in the information.

On this appeal from the order denying the writ, this court appointed other counsel to represent the defendant. His only argument is that on the face of the record it appears that defendant was wrongfully adjudicated an habitual criminal under section 644, subdivision (b) of the Penal Code. He claims the allegations in the information are insufficient as to the first prior charge of robbery because defendant was, in that case, first sentenced to the California Youth Authority in September, 1945, and on January 18, 1946, was found to be incorrigible and transferred to San Quentin State Prison without first being returned to the court for this transfer, as provided by section 747 of the Welfare and Institutions Code; that a commitment to a Youth Authority does not constitute a prior conviction under Penal Code, section 644, citing