In re Brown

TOBRINER, J. On October 4, 1962, a jury found defendant guilty of first degree robbery. (Pen. Code, §§211, 211a.) The court sentenced him to the term prescribed by law, and defendant appealed. The Court of Appeal affirmed the conviction (People v. Brown (1963) 222 Cal.App.2d 739 [35 Cal.Rptr. 582]), and on January 29, 1964, we denied a hearing. Petitioner then took a timely appeal to the United States Supreme Court. On April 26, 1965, that court dismissed the appeal for want of jurisdiction and, treating his papers as a petition for a writ of certiorari, denied the petition. (Brown v. California, 380 U.S. 521 [14 L.Ed.2d 266, 85 S.Ct. 1344].) Defendant brought this petition for a writ of habeas corpus alleging that his conviction was in violation of the rules in Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].

Two confessions which defendant gave the police contributed strongly to his conviction. At the time of each confession, defendant was under arrest and regarded as a prime suspect. Unquestionably, police interrogations designed to elicit incriminating statements prompted these confessions. Nevertheless, defendant was not accorded the preliminary protections required by Escobedo and Dorado. Defendant’s conviction was not final at the date of decision of Escobedo because his ease was still pending on direct appellate review. (In re Shipp (1967) 66 Cal.2d 721, 723-724 [59 Cal.Rptr. 97, 427 P.2d 761] ; People v. Rollins (1967) 65 Cal.2d 681, 683 [56 Cal.Rptr. 293, 423 P.2d 221] ; In re Spencer (1965) 63 Cal.2d 400, 404-406 [46 Cal.Rptr. 753, 406 P.2d 33] ; In re Lopes (1965) 62 Cal.2d 368 [42 Cal.Rptr. 188. 398 P.2d 380].) The Attorney General therefore commendably concedes that the trial court committed reversible error in allowing the contents of those confessions to be brought to the [341]attention of the jury. (People v. Spencer (1967) 66 Cal.2d 158, 163 [57 Cal.Rptr. 163, 424 P.2d 715] ; People v. Schader (1965) 62 Cal .2d 716, 728-731 [44 Cal.Rptr. 193, 401 P.2d 685] ; People v. Dorado, supra, 62 Cal.2d 338, 356-357.)

The Attorney General argues, however, that defendant is not entitled to release from prison because he is still held under a valid conviction in 1955, also for first degree robbery. At the time petitioner allegedly committed the robbery that was the subject of his invalid trial, defendant was on parole from his earlier prison term. The Adult Authority had fixed his term at 10 years, to expire on April 5, 1965, and had released him on parole on October 5, 1960. After his conviction in 1962 and during the pendency of his appellate remedies, while the Adult Authority still could exercise jurisdiction over defendant because his term had not yet expired, the Adult Authority revoked his parole, refixed his term at maximum (life), and ordered him returned to the state prison. Two grounds provided the basis for this action. The first rested upon his commission of a robbery, as evidenced by his 1962 conviction, and the second involved his driving a motor vehicle -without the knowledge or permission of his parole officer.