People v. McConnell

California Court of Appeal Apr 3, 1937 No. Crim. 1945Published

Before: Tyler

AI Brief

AI-generated · verify before citing

Holding. The court held that a prior conviction's status as a felony for habitual criminal sentencing is determined by the law at the time of the conviction, and that a writ of error coram nobis is unavailable for issues that could have been raised on direct appeal.

Issues

Whether a prior conviction must remain a felony at the time of a subsequent prosecution to qualify under the Habitual Criminal Act.
Whether a writ of error coram nobis is available to challenge a sentencing error that could have been raised on appeal.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The date of conviction, therefore, is the time to be considered in determining whether or not the offense was a felony at the subsequent trial.”

“Under these circumstances the point made cannot be the basis subsequently for the issuance of a writ of error coram nolis.”

TYLER, P. J.

Appeal from an order sustaining a demurrer to a writ of error

coram nobis

without leave to amend and denying the petition for the writ. From the order denying the writ petitioner has appealed.

It appears from the facts that on December 31, 1928, the district attorney of Contra Costa County filed an information charging appellant with grand theft, and two prior convictions of grand larceny, one in Alameda County and one in El. Dorado County. One of the two prior convictions, that in El Dorado County, was committed on October 24, 1920, and the amount involved was eighty dollars. This crime at the time of its commission constituted a felony. Appellant pleaded guilty to the substantive charge of the crime of which he was charged in the information filed on December 31, 1928, and admitted the two prior convictions. He was sentenced to Folsom state prison as an habitual criminal under section 644 of the Penal Code. Appellant contended at the hearing of the writ, and here contends, that upon his trial in 1928 when he admitted the prior conviction occurring in El Dorado County, the law had been amended in 1923' so that the theft of eighty dollars was no longer a felony, and that therefore he improperly admitted that offense as a prior felony conviction. There is no merit in this contention. The Habitual Criminal Act, section 644 of the Penal Code, contains no provision that the prior felony must be such an offense at a subsequent date of prosecution. The date of conviction, therefore, is the time to be considered in determining whether or not the offense was a felony at the subsequent trial.

In support of his claim appellant has cited us to the case of

People

Pace,

2 Cal. App. (2d) 464 [38 Pac. (2d) 202.] The case does not support his contention. There the prior conviction was the theft of ten dollars committed in a sister state where the offense constituted a felony but would have been a misdemeanor in this state and not subject to a state’s imprisonment either before or after the 1923 amendment. Where prior convictions charged have been suffered in sister

[198]

People v. McConnell

AI Brief

TYLER, P. J.

More from California Court of Appeal

Related research

AI Brief