Spivey v. McGilvray

PULLEN, P. J.

In March, 1935, by an amended information petitioner was charged with robbery in three counts and with three prior convictions. Upon arraignment defendant entered pleas of not guilty to the three counts of robbery and admitted the three prior convictions. After a trial by jury the defendant was found guilty of two of the charges of robbery of the first degree and not guilty of robbery as charged in the first count. Upon arraignment for judgment the court found and defendant admitted that he had been convicted of three prior felonies, i. e., grand theft, burglary of the second degree, and a violation of section 144 of the California Vehicle Act. Defendant was then sentenced to state prison upon the offenses charged in the second and third counts of the information, the sentences to run consecutively, both being for robbery of the first degree, the defendant having been armed with a deadly weapon at the time of the robberies. The court also found that

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defendant had been previously twice convicted of felonies, i. e., grand theft and burglary of the second degree, and thereupon adjudged defendant an habitual criminal.

Thereafter on April 22, 1938, upon motion, the court ordered stricken from its judgment that portion thereof adjudging defendant, under the provisions of section 644 of the Penal Code, an habitual criminal.

In spite of such amended and modified judgment it is alleged the board of prison directors refused to be governed by such modified judgment upon the ground that the superior court had lost jurisdiction to modify its judgment. Petitioner now seeks by this motion to compel the board of prison directors to proceed in accordance with the terms of such modified judgment.

It seems to have been the theory of the trial court, and the contention of petitioner here, that since petitioner did not serve separate terms of imprisonment as the result of his prior convictions for burglary and grand theft that he was improperly found to be an habitual criminal.

These offenses were committed prior to 1931. At that time section 644 of the Penal Code read:

“Every person convicted in this state of any felony, who shall have been previously twice convicted upon charges separately brought and tried ... in this state or elsewhere, of the crime of . . . burglary . . . grand theft. ... or any of them, shall be adjudged an habitual criminal.”