People v. Allen

California Court of Appeal Jul 24, 1953 No. Crim 861Published

Before: Mussell

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Holding. The court held that the defendant's prior felony convictions qualified under Penal Code section 644, that habitual criminality is not a substantive offense, and that the defendant's claims were procedurally barred because they could have been raised on appeal.

Issues

Whether the defendant's prior out-of-state felony convictions qualified as 'priors' under Penal Code section 644.
Whether 'habitual criminality' constitutes a substantive offense.
Whether a writ of error coram nobis is available when the issues could have been raised on a motion for a new trial or appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is apparent that all three of the priors alleged, in their substance, come within California’s definition of the enumerated crimes.”

“That prior convictions are not elements of a substantive offense is necessarily so under the reasoning of the cases which have upheld the constitutionality of section 644”

“a writ of error coram nobis will not lie.”

MUSSELL, J.

Defendant was charged in an amended information, filed December 23, 1949, with the murder of one Leo Jones. The information also contained allegations that the defendant had been previously three times convicted of felonies, as follows:

(1) That he was convicted on April 22, 1930, in the District Court of the County of Gray, State of Texas, of the crime of felony, to wit, assault with intent to murder, and that he had served a term of imprisonment therefor in the Texas State Prison at Huntsville.

(2) That on April 6, 1933, in the District Court of the County of Custer, State of Oklahoma, he was convicted of the crime of felony, to wit, assault and battery with a dangerous weapon with intent to kill, and that he served a term of imprisonment therefor in the Oklahoma State Prison at McAlester.

(3) That on April 24, 1940, in the District Court of the County of Travis, State of Texas, he was convicted of the crime of felony, to wit, theft from person, and that he served a term of imprisonment therefor in the Texas State Prison at Huntsville.

A jury found the defendant guilty of murder in the second degree. The trial court, on pronouncing judgment, recited that defendant had admitted the three prior felony convictions by pleading guilty thereto and thereupon sentenced the defendant to state prison for the term prescribed by law for the crime of murder in the second degree. It was further ordered and decreed that the defendant be declared an habitual criminal.

In May, 1952, the defendant filed a petition in the Superior Court of Kern County for a writ of error

coram nobis

[367]

for the purpose of setting aside the “judgment of habitual criminality” pronounced in his case. His petition was denied and he appeals from the order of court denying his application for the writ.

Defendant contends that he was not legally determined to be an habitual criminal, it being neither alleged nor proved that his acts in committing the prior felonies charged in sister states were acts constituting any of the crimes enumerated in section 644 of the Penal Code, and that he was convicted of an offense of which he was never accused, the offense being that of “habitual criminality.”

People v. Allen

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MUSSELL, J.

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