People v. Taylor

SHINN, P. J.

Jasper Lewis Taylor was accused by information of assault with a deadly weapon with intent to commit murder. It was also alleged that he had been previously convicted of three felonies and had served separate terms of imprisonment therefor in state prison, to wit: A conviction of burglary in Oklahoma in 1939, a conviction of burglary in Oklahoma in 1941, and a conviction of burglary in California in 1947. Defendant pleaded guilty to assault with a deadly weapon, a lesser but necessarily included offense, and admitted the three prior convictions as alleged in the information. The court sentenced him to state prison for the term prescribed by law and adjudged him to be an habitual criminal under section 644, subdivision (b), of the Penal Code. Taylor appeals from the judgment. He contends that the court erred in finding him to be an habitual offender. We agree.

Under section 644, subdivision (b), of the Penal Code an accused may not be sentenced as an habitual offender merely upon proof that he has previously suffered three felony

convictions;

the People must prove that he has suffered three convictions for offenses enumerated in section 644, subdivision (b). Burglary is one of the included offenses.

(In re McVickers,

29 Cal.2d 264, 267 [176 P.2d 40].) If one of the prior convictions was suffered in another state it must appear that the minimum elements of the foreign offense are substantially similar to the minimum elements of one of the crimes listed in the California statute.

(People

v.

Morton,

41 Cal.2d 536, 539 [261 P.2d 523];

In re McVickers, supra,

29 Cal.2d 264, 267, and cases cited.)

Defendant argues that he was improperly sentenced as an habitual criminal for the reason that there is no proof that the offenses for which he was convicted in the State of Oklahoma were equivalent to any enumerated in section 644, subdivision (b). The point is well taken.

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