In re Womack

BRAY, J.* Petition for writ of habeas corpus challenging judgment adjudging petitioner to he an habitual criminal.

Questions Presented

1. May petitioner challenge a judgment obtained approximately 30 years before on ground of alleged coercion by district attorney ?

2. Did petitioner by admitting in 1965 his prior conviction waive his right to challenge the prior judgment because of alleged lack of counsel?

3. Was petitioner advised of his constitutional rights and did he waive them at the time of the 1938 judgment?

[75]Record

On November 18, 1965, judgment of conviction of violation of section 4530, subdivision (b), of the Penal Code (escape) was entered against petitioner in the Yolo County Superior Court. On the same day and in the same court, judgment of conviction after jury trial of first degree robbery and of two counts of kidnaping was also entered against him. At the same time he was adjudged an habitual criminal within the meaning of Penal Code section 644. Sentences for the convictions were ordered to run concurrently each with the other.1

Petitioner had some 12 prior convictions. However, the convictions upon which the habitual criminal determination was based were: (1) conviction in Sacramento County of three counts of robbery and four counts of burglary; (2) conviction on October 21, 1938, in the Kern County Superior Court of three counts of robbery. It is this conviction only which petitioner here challenges. (For brevity it will be referred to as the 1938 conviction.)

Petitioner contends that the trial court erred in considering that conviction in adjudging him on November 18, 1965, an habitual criminal for the following reasons: (1) that the 1938 conviction was obtained on a guilty plea by him coerced by the district attorney, and (2) that he was denied the benefit of counsel at that time.

■ As to (1) it is too late to consider the alleged coercion. Petitioner merely alleges the bald conclusion that he was coerced by the district attorney to enter the guilty plea and sets forth no facts to support such conclusion. Thus, he has not made the allegations necessary to invoke the constitutional inquiry under the principles announced in the eases upon which he relies. (See 24 Cal.Jur.2d; § 78, p. 544.) Moreover, approximately 30 years have elapsed since the entry of that plea and the judgment of conviction thereon. The validity or invalidity of the prior conviction depends upon the legal effect of determination of facts existing some 30 years ago. Obviouslly, it would be practically impossible after that lapse of time to investigate the petitioner’s charge or the then facts. As said in In re Streeter (1967) 66 Cal.2d 47, 52 [56 Cal.Rptr. 824, 423 P.2d 976], concerning the failure of the petitioner for about 23 years to raise his claim that his confession was secured by coercive methods : “ [O]f necessity, there must