People v. McConnell

ADAMS, P. J.

On October 14, 1947, appellant Edwards and one Abbott F. McConnell were charged with robbery committed in San Joaquin County on October 3, 1947. Subsequently, and on November 12, 1947, an amended information was filed in which Edwards was charged with two priors, the first, “auto theft,” alleged to have been committed in Kansas in 1928, followed by imprisonment in the State Industrial Reformatory at Hutchinson, Kansas, and the second, kidnapping, in the State of Kansas, alleged to have been committed in 1933, followed by imprisonment in the Kansas State Penitentiary. No priors were charged against McConnell.

Both defendants pleaded not guilty to the alleged robbery, but Edwards admitted the two priors. At the trial defendants were represented by the public defender. McConnell took the stand in his own behalf, but Edwards refrained from testifying. Both were convicted, the degree of the offense being fixed by the jury as robbery in the second degree. Judgment was pronounced against both and Edwards was adjudged to be an habitual criminal. A motion for a new trial was interposed by both and denied, and both appealed, though separately, from the judgment and from the order denying a new trial.

McConnell has not pursued his appeal, but Edwards, appearing personally, urges before this court that his adjudication as an habitual criminal was erroneous. While his briefs do not set forth very clearly the grounds for this contention, apparently they are that as his conviction in this state was for robbery of the second degree he was not a person subject to adjudication as an habitual criminal under section 644 of the Penal Code; second, that the first prior, “auto theft,” is not one of the felonies enumerated in said section; and third,

[580]

that his service of sentence was in the Kansas Industrial Reformatory which is not a state prison, and that he is for that reason also excluded from the provisions of that section.

In the recent case of

People

v.

Stein,

31 Cal.2d 630, 634 [191 P.2d 409], it was held that section 644 enumerates burglary without mention of the degree of the crime and therefore the degree is not material. Also see