In Re Schunke

California Court of Appeal Sep 25, 1947 No. Crim. 2023Published

Before: Adams

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Holding. The court held that the petitioner was properly adjudged an habitual criminal based on two valid prior convictions, and that claims regarding trial errors already addressed on direct appeal cannot be relitigated via habeas corpus.

Issues

Whether a North Dakota burglary conviction qualifies as a prior conviction under California Penal Code section 644.
Whether habeas corpus may be used to relitigate claims of insufficient evidence and prosecutorial misconduct previously decided on appeal.
Whether California Penal Code section 644 is unconstitutional.

Disposition. writ discharged and petitioner remanded to custody

Quotations verified verbatim against the opinion

“It is therefore apparent that the conviction in North Dakota was properly considered by the trial court in adjudging petitioner an habitual criminal.”

“Such writ may not be employed as a substitute for an appeal.”

“Petitioner also urges that section 644 of the Penal Code is unconstitutional, but such contention is without merit.”

ADAMS, P. J.

This petitioner, in June, 1941, was convicted of the crime of robbery of the first degree. He was charged with and admitted four prior convictions, to wit, a violation of the Dyer Act in Utah in 1929, burglary committed

[589]

in North Dakota in 1932, and robbery, first degree, and burglary, first degree, committed in California in December, 1934. He was adjudged an habitual criminal and sentenced to imprisonment for life. From that judgment of conviction he appealed, and the judgment and an order denying a new trial were affirmed.

(People

Schunke,

47 Cal.App.2d 542 [118 P.2d 314].)

In his petition before this court he alleges that he was wrongfully adjudged to be an habitual criminal because (a) a violation of the Dyer Act is not one of the offenses enumerated in section 644 of the Penal Code of this state, (b) the offense committed in North Dakota, which was designated third degree burglary, would not have constituted a felony if committed in this state and there is actually no such crime defined by the statutes of North Dakota, and (c) that the alleged third and fourth prior convictions in California in 1934 (robbery and burglary) constituted but one offense for which he served but one term. He also alleges that the evidence adduced at the trial of the primary offense with which he was charged in 1941 was insufficient to support the verdict and that the prosecuting attorney made prejudicial remarks to the jury which resulted in defendant’s conviction.

We granted the writ solely because of the allegations of the petition regarding the prior conviction of a violation of the Dyer Act, and the conviction of burglary committed in North Dakota. Regarding the former, it was held in

People

Lohr,

28 Cal.App.2d 397 [82 P.2d 615], that the offense is substantially the same as that denounced in section 503 of the Vehicle Code, is not one of those enumerated in section 644 of the Penal Code, and therefore may not be used as a ground for an adjudication of habitual criminality. Also see

In Re Schunke

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ADAMS, P. J.

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