In Re Malloy

California Supreme Court Mar 22, 1967 No. Crim. 10383Published

Before: McComb

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Holding. The court held that while the petitioner's habeas corpus claims regarding trial errors, search and seizure, and denial of counsel were meritless, he was subjected to prohibited multiple punishment for robbery and kidnaping arising from the same course of conduct in 1952. Consequently, the court set aside the robbery sentences but denied the petition for release as the petitioner remained held under other valid judgments.

Issues

Is petitioner entitled to habeas corpus relief regarding the disclosure of prior convictions at trial?
Was petitioner denied the right to confront prosecution witnesses?
Is habeas corpus available to challenge evidence obtained by an unconstitutional search and seizure?
Was petitioner entitled to court-appointed counsel and transcripts for his coram nobis appeal?

Disposition. denied

Quotations verified verbatim against the opinion

“In each instance, the kidnaping was part of an indivisible course of conduct directed to the objective of robbing the victim. Thus, petitioner should not be punished for both robbery and kidnaping.”

“It is settled that habeas corpus is not available to challenge the receipt of evidence allegedly obtained by an unconstitutional search and seizure.”

McCOMB, J.

Petition for writ of habeas corpus.

Facts: On March 20, 1964, an information was filed in San Francisco Superior Court charging petitioner with the robbery of Sam Jevarian on or about February 17, 1964. The information alleged that petitioner had been armed with a deadly weapon at the time of the commission of the offense and that he had suffered two prior convictions for felony, an attempted sex crime on a government reservation in 1951, and two counts of robbery and two counts of kidnaping for the purpose of robbery in 1952.

On March 22, 1964, petitioner, represented by the public defender, pleaded not guilty to the crime of robbery and admitted the alleged prior convictions.

On April 24, 1964, the jury found petitioner guilty of robbery in the first degree and found that he had been armed with a deadly weapon as charged in the information. Petitioner waived a probation report, and judgment and sentence were pronounced against him ordering him to the state prison for

[254]

the term prescribed by law, the sentences to ran concurrently with any prior incompleted terms. No appeal was taken from the judgment.

Petitioner was received at the California State Prison at Vacaville on April 28, 1964, under the above-stated robbery sentence and as a parole violator.

On April 20, 1965, he filed an application for writ of error

coram nobis

in the superior court, contending that evidence introduced at his 1964 trial was the product of an unlawful search and seizure.

On April 28, 1965, the superior court ruled that petitioner had not “. . . presented adequate factual allegations supporting a prima facie ease for Coram Nobis. ...”

On May 6, 1965, petitioner filed a notice of appeal from the superior court’s order.

On August 6, 1965, petitioner filed a petition for a writ of habeas corpus in this court, alleging that he was denied counsel to assist him in prosecuting his appeal in the Court of Appeal. We denied the petition on August 25, 1965. On January 24, 1966, the Court of Appeal, First Appellate District, dismissed the appeal.

In Re Malloy

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