People v. Mangan

PETERS, P. J.

Thomas L. Mangan appeals from that portion of a judgment rendered by the Superior Court of Alameda County adjudging him to be an habitual criminal under section 644(a) of the Penal Code. That section provides that every person who shall be convicted of certain enumerated crimes, including robbery, “who shall have been previously twice convicted upon charges separately brought and tried,

and who shall have served separate terms therefor

in any State prison” for certain enumerated crimes, including robbery, “shall be adjudged an habitual criminal.” (Italics added.) Section 3047.5 of the Penal Code provides that such a person shall not be eligible for parole until he shall have served a minimum term of at least nine years. Appellant concedes that his last conviction was for robbery, and that he suffered two prior convictions for robbery and served terms or a term therefor, but he contends that the sentence on the second prior ran, in part, concurrently with his sentence on the first prior, and that, therefore, he did not serve “separate terms therefor” as required by section 644(a), Penal Code. The point is without merit.

In 1947 appellant, together with two others, was accused of having committed a robbery on October 3, 1947. The information also charged two priors, in that it charged appellant with a conviction and service of a term therefor for robbery in San Francisco in 1925, and with a conviction and service of a term therefor for robbery in Alameda County in 1935. The information did not charge that the two terms were “separate” terms. Appellant admitted the two priors as charged, and pleaded not guilty to the main charge. He was found guilty of the main charge by a jury, and, in view of his admissions of the two priors, adjudged to be an habitual criminal.

The transcript on the present appeal shows that when appellant, in Alameda County, was convicted of the offense of robbery in 1935, the then trial judge sentenced him to San Quentin “for the term prescribed by law.” That was in January, 1935. In September of that year the same trial judge,

nunc pro tunc,

made an “Order Correcting Commitment.” That order first recites the 1925 San Francisco conviction for robbery and service of a term therefor, and then recites:

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