In re Mitchell

PETERS, J. Ervin Louis Mitchell, in propria persona, petitions for a writ of habeas corpus by which he seeks his release from San Quentin where he is imprisoned under a commitment from the Superior Court of Humboldt County. Petitioner did not appeal from the judgment of conviction, and it long since has become final. His major contention is that, for reasons hereafter stated, the trial court was without jurisdiction to enter the judgment under attack. The contention lacks merit.

The clerk’s transcript of the trial court proceedings indicates that on September 7, 1960, an information was filed charging defendant with a “Violation of Section 667 of the Penal Code of California 1 committed as follows: The said [669]defendant Ervin Louis Mitchell on or about the 4th day of August, A.D., nineteen hundred and sixty” in Humboldt County “contrary to the form, force and effect of the Statute in such case made and provided . . . did willfully and unlawfully take away personal property of another, of a value not exceeding the sum of Two Hundred Dollars, to wit, money, the personal property of Clair Richard Shierk.

“That before the commission of the offense hereinabove set forth in this Information, said defendant Ervin Louis Mitchell was,” in Humboldt County, “convicted of the crime of burglary, and was committed to the California State Prison on May 8, 1954, being discharged May 6, 1958.”

Petitioner was arraigned on that information and pleaded not guilty, thus putting in issue both the petty theft and the prior conviction, charged in the information. On January 3, 1961, petitioner, then represented by counsel, appeared for trial. Before the jury was selected the court convened in chambers, the defendant and his counsel, the deputy district attorney, and the judge being present. The court minutes for that day recite: “Defendant admitted the allegations of the prior felony conviction alleged herein. Whereupon the Court ordered the information amended on its face to show the offense herein to be a violation of Section 4882 of the Penal Code instead of a violation of Section 667 of the Penal Code. ’ ’

The clerk’s transcript shows that the only amendment made to the original information was to strike the number 667 and to insert the number 488. Thus, as amended, defendant was charged with petty theft, a violation of section 488 of the Penal Code, in that he took certain personal property of Clair Richard Shierk not exceeding two hundred dollars, and that he had previously been convicted of a designated felony and served a term therefor. Thus, the amended information charged petty theft with a prior felony conviction and service of a term, the precise elements that go to make up the offense defined by section 667 of the Penal Code. (See fn. 1.)