In re Luce

PEEK, J. Henry C. Luce, presently confined in San Quentin Prison serving a sentence for felony indecent exposure (Pen. Code, § 314), seeks discharge by writ of habeas corpus (see People v. Dowding, 185 Cal.App.2d 274, 276-277 [8 Cal.Rptr. 208]). His petition is predicated on the ground that a prior conviction for a like offense, which was used to elevate the present offense from misdemeanor to felony status (see Pen. Code, § 314, subd. 2, par. 2), was entered upon a plea of guilty made without apprisal or awareness of his right to counsel or waiver of such right.

A certified abstract of the record of the prior proceeding reflects that in 1950, in the Municipal Court for the Oakland-Piedmont Judicial District, County of Alameda, petitioner was charged with indecent exposure in violation of section 311 of the Penal Code, presently section 314, subdivision 1 (Stats. 1961, ch. 2147, §§ 1, 7), a misdemeanor. He initially pleaded not guilty, but later changed his plea to guilty. Concerning legal representation at the time he changed his plea to guilty, the certified abstract merely states that “Court docket does not show of record that any defense attorney was present.” Petitioner was placed on probation and ordered to serve 180 days in the county jail, the maximum period of confinement for misdemeanor indecent exposure.

In 1964, in the Superior Court for the City and County of San Francisco, petitioner was charged with indecent exposure under subdivision 1 of section 314 of the Penal Code. Subdivision 2, paragraph 2, of section 314 provides that “Upon the second and each subsequent conviction under subdivision 1 of this section, . . . every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison for not less than one year.” Because of the prior 1950 conviction which was charged against him in 1964, petitioner was sentenced as a felon to state prison for the term provided by law, a maximum of life imprisonment (see Pen. Code, § 671) and was transferred to the custody of the Department of Corrections on April 22, 1964. Petitioner was represented by counsel in the 1964 proceeding, and no questions are here presented concerning the adequacy of that representation.

[13]However, as to the 1950 proceeding, petitioner alleges that he was not represented by counsel, that he was indigent, that he was never apprised of his right to counsel, and that he did not waive that right by word or act. Accordingly, he urges that there was a constitutional defect in that proceeding (Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733]) rendering it subject to collateral attack (United States ex rel. Durocher v. LaVallee, 330 F.2d 303; In re Johnson, 62 Cal.2d 325 [42 Cal.Rptr. 228, 398 P.2d 420]) ; that the 1964 judgment is therefore valid only insofar as it determines that he is guilty of misdemeanor indecent exposure and imposes sentence for that lesser crime (see In re Seeley, 29 Cal.2d 294, 302-303 [176 P.2d 24]) ; and that he is presently entitled to be discharged from custody because he has already served in excess of the maximum sentence for misdemeanor indecent exposure. (Pen. Code, §§ 19 ; 314, subd. 1.)