In Re Martin

California Court of Appeal Dec 31, 1952 No. Crim. 4893Published

Before: Shinn

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Holding. The court held that the petitioner was improperly adjudged an habitual criminal because the record of his prior Texas theft conviction failed to establish that the offense would have constituted a felony under California law. Consequently, the petitioner must be treated as having only one prior felony conviction rather than two.

Issues

Whether the petitioner's status as an habitual criminal was lawfully established under California Penal Code section 644.
Whether a prior out-of-state conviction for theft qualifies as a felony for habitual criminal sentencing if the record does not specify the value of the stolen property.

Disposition. remanded

Quotations verified verbatim against the opinion

“There was a deficiency of evidence before the trial court to prove defendant to be an habitual criminal.”

“it must be presumed that the value of the property in the Texas conviction was less than $200 and not from the person.”

“he is entitled to be considered and treated by the authorities as one who had been convicted of one but not two felonies”

[189]

SHINN, P. J.

William H. Martin, in propria persona, petitioned for a writ of habeas corpus, which was issued. Richard E. Erwin, Esq., member of the Lost Angeles County-Bar Association Committee on Criminal Appeals, was appointed by the court to represent the petitioner. Upon order of the court under rule 60, Rules on Appeal, the files in

People

Martin,

No. 35323 in the Superior Court of the County of Riverside were transmitted to this court. They disclose the following facts.

By amended information filed May 13, 1942, Martin was accused in separate counts of three offenses of issuing fictitious checks of $20 each in violation of section 476 of the Penal Code. It was alleged in the information that Martin, under the name of Bill Cross, was previously, in the District Court of the State of Texas, in and for the County of El Paso, convicted of the crime of ‘‘ conspiracy to commit theft from the person, a felony” and that under the name of William H. Cross, in the District Court of the State of Texas in and for the County of Harris, he had been convicted of the crime of “theft, a felony”; that judgments on each said conviction had been rendered and that under each judgment Martin had served a term of imprisonment in the state prison. Martin pleaded guilty to the three offenses charged and he admitted the former convictions and terms of imprisonment alleged in the information. He was adjudged by the court to be an habitual criminal. He was sentenced to state prison for the term prescribed by law on each of the three counts, the sentence on count two to run concurrently with that on count one, and the sentence on count three to run consecutively with the concurrent sentences on counts one and two, and it was further ordered that he be punished by imprisonment for life.

The question before us is whether his status as an habitual criminal was lawfully established and adjudged. In order to aid the court in this inquiry, the attorney general has caused to be procured and there have, been filed authenticated copies of the indictments of Martin, under the name of Cross, in the State of Texas, under which he suffered the convictions alleged in the information. These show that Martin was indicted for and pleaded guilty to “theft, a felony.” The indictment did not state nor does the record show the value of the property that was stolen. He was also indicted, tried and convicted of “conspiracy to commit theft from the person” and was sentenced to state prison upon each charge.

In Re Martin

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SHINN, P. J.

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