Opinion
Page __
__ Cal.App.2d __ 258 P.2d 100 PEOPLE v. MORTON. Cr. 2878. California Court of Appeals, First District, First Division June 15, 1953Hearing Denied July 9, 1953.
[258 P.2d 101] George Nye, Public Defender of Alameda Co. and Rudolf H. Michaels, Asst. Public Defender, Oakland, for appellant.
Edmund G. Brown, Atty. Gen. and David K. Lener, Deputy Atty. Gen., for respondent.
PETERS, Presiding Justice.
Defendant was charged with four counts of burglary, with one count of attempted burglary, and with having suffered two prior felony convictions in Tennessee for which terms had been served. One of the burglary counts was dismissed at the trial. After a trial before the court without a jury defendant was convicted on the three remaining burglary counts, of the charged attempted burglary (all of the first degree), and of the two charged prior felony convictions. Based upon the two priors, he was adjudged to be an habitual criminal, and sentenced to serve consecutive terms upon each of the four counts of which he had been convicted. He appeals from that portion of the judgment adjudicating him to be an habitual criminal, from that portion of the judgment finding that defendant had suffered one of the two charged prior convictions, and from the order denying his motion for a new trial.
The case is presented on a partial reporter's transcript limited substantially to the evidence relating to the challenged prior conviction. The prosecution attempted to prove this prior through the testimony of a sergeant of the sheriff's office assigned to the bureau of identification. He qualified as an expert in fingerprint identification, and testified that the fingerprints of defendant matched those on a fingerprint record card certified to be from the files of the Tennessee State Penitentiary. That card purported to show that the person whose fingerprints were there shown had served a term in the state prison of Tennessee after a conviction of 'HBL.' The sergeant was then asked if he was familiar with the 'use of those particular initials in criminologists' reports such as this' and he replied that he was familiar, that 'The Federal Bureau of Investigation puts out a Bulletin of Standardized Abbreviations, and 'HB' is, as near as my memory stands, correct for the abbreviation for housebreaking, and 'L' is the desired abbreviation used for larceny.' It was the theory of the prosecution, sustained by the trial court, that this evidence proved that defendant had been convicted in Tennessee and served a term for 'housebreaking-larceny,' and that 'housebreaking' under Tennessee law is the equivalent of burglary under California law. It is admitted that 'larceny' under Tennessee law may not be a felony under California law.
The parties argue at some length over whether 'housebreaking-larceny' is identical with any felony in this state set forth in section 644(a) of the Penal Code. It is, of course, the law that before an accused can be adjudged an habitual criminal under section 644(a) of the Penal Code, he must first be convicted in this state of one of the enumerated felonies set forth in that section. Here, 'burglary of the first degree' is such a felony that is enumerated in the section, so that this first requirement has been met. The second requirement is that the accused previously have been at least twice convicted, and have served separate terms for each conviction, of certain enumerated felonies, one of which is burglary. Where the prior has been suffered in another state there must be proof that the out-of-state felony comes within the definition under California law of one of these enumerated felonies. In re McVickers, 29 Cal.2d 264; In re Bramble, 31 Cal.2d 43, 187 P.2d 411; In re Seeley, 29 Cal.2d 294, [258 P.2d 102] 176 P.2d 24. In ascertaining whether the out-of-state prior would have been one of the enumerated felonies, the courts have required a strong showing by the prosecution of similarity, and reasonable doubts must be resolved in favor of the accused. In re McVickers, 29 Cal.2d 264, 176 P.2d 40; People v. Ralph, 24 Cal.2d 575, 150 P.2d 401; In re Bertrand, 61 Cal.App.2d 183, 142 P.2d 351.
We do not find in necessary to determine whether 'HBL' means housebreaking with intent to commit larceny, in which event it would be burglary under California law, or means housebreaking and a separate and distinct larceny. In the latter event it is by no means clear that housebreaking, considered alone, necessaryily falls within the California definition of burglary. The fact that such confusion exists emphasizes the real defect in the proof of this prior. Here the appellant has been adjudged to be an habitual criminal and sentenced to prison for what may be the balance of his life, based upon a prison card with some ambiguous initials on it prepared by an unknown person upon information gained we know not how. That is not a proper way to prove a prior conviction. The obvious and proper way of proving a prior is by a certified copy of the commitment or judgment, not by a mere prison card about which the court knows nothing except that whoever made it out was of the opinion that the accused had been convicted of 'HBL,' whatever that might be.
While it is true that counsel for appellant did not object to the introduction of a similar card offered as proof of the first prior, but which directly described a crime that is one of the enumerated felonies under California law, and while it is also true that appellant's counsel did not specifically object to the card here involved on the ground that such card was not the best evidence, we are of the opinion that the objection that was made, namely, that the sergent's testimony and the card constituted no evidence at all that a prior had been suffered in Tennessee that is one of the felonies enumerated in section 644(a) of the Penal Code, should be interpreted as including the best evidence objection. All that the card could possibly prove would be the service of a term in Tennessee, but it could not prove a conviction of one of the enumerated felonies. Without proff of a judgment of conviction evidence of service of a term would be irrelevant. People v. Carrow, 207 Cal. 366, 278 P. 857. That was the objection that obviously was intended and it should have been sustained.
It follows that the adjudication that appellant suffered the prior here involved, and the further adjudication, based in part on this prior, that appellant is an habitual criminal, are unsupported by the evidence and cannot stand.
In view of this prejudicial error, what order should be made by this court? On this question the cases are in hopeless conflict. The parties are agreed that at different times the courts of this state have solved this problem in at least four different ways:
1. By an order setting aside the finding that appellant has suffered the challenged prior conviction, and modifying the judgment by vacating the determination that appellant is an habitual criminal. This was done, without much discussion, in People v. Foster, 3 Cal.App.2d 35, 39 P.2d 271. This is the solution advocated by appellant, and would result, of course, in there being no partial new trial on the issue of whether appellant has suffered this prior.
2. By an order similar to number 1 above but adding that the cause be remanded for a partial new trial on the challenged prior, and for resentencing in conformity with the outcome of that partial new trial. This is how the problem was solved in People v. Willison, 116 Cal.App. 157, 2 P.2d 543. This solution is only permissible if the issue as to the prior is severable from the main charge and can lawfully be retried by a separate and different jury than the one that tried the main issue. This is the solution preferred by the attorney general.
3. By an order reversing the entire judgment, that is, by reversing the convictions [258 P.2d 103] on the four main counts, and on the unchallenged prior, as well as the challenged prior, even though the appeal here is limited to the one prior. This solution was arrived at in People v. Ysabel, 28 Cal.App.2d 259, 82 P.2d 476, and People v. Nicholson, 34 Cal.App.2d 327, 93 P.2d 223. This seems to be an heroic remedy, requiring as it does a new trial of issues not challenged by appellant. It is predicated upon the theory of the absolute non-severability of the main guilt issue and the issue of habitual criminality. But see In re McVickers, 29 Cal.2d 264, 176 P.2d 40 ; In re Seeley, 29 Cal.2d 294, 176 P.2d 24.
4. By an order reversing the finding that appellant has suffered the challenged prior conviction, and the adjudication that appellant is an habitual criminal, and remanding the entire cause to the trial court with instructions to grant the district attorney a period of time to determine whether he desires to dismiss the charge in reference to the prior here involved, in which event the trial court would resentence appellant upon the four counts of which he was convicted and the unchallenged prior, or whether he desires not to dismiss the prior here challenged. Should the district attorney not elect to dismiss the challenged prior, or should he take no action at all within the time limited, then the trial court would be directed to grant a new trial of the entire cause. This was done in People v. Chadwick, 4 Cal.App. 63, 87 P. 384, 389; People v. Carrow, 207 Cal. 366, 278 P. 857. This is the second alternative choice of the attorney general.
This apparent conflict can in part be explained by differences existing in the statutes applying to habitual criminals at different times. See People v. Fewkes, 214 Cal. 423, 6 P.2d 250, discussing some of these changes. The problem revolves around the question as to whether the priors charged are severable for trial purposes from the main charge or charges. There is no doubt a close relationship between them. While the solution arrived at in solution number 2 and approved and applied in People v. Willison, 116 Cal.App. 157, 2 P.2d 543, granting a new trial on the challenged prior alone, is a simple one and at first blush seems fair to both parties, there is something logically incongruous in one jury passing on guilt and another and different one passing on the charged priors. Under what we consider the best reasoned cases the charge of the commission of prior offenses cannot be considered as entirely separate and divisible from the charge of the main offense. The charge of having committed a prior or of being an habitual cannot be made independently of a charge involving a present offense. The charge relating to the prior has significance only in relation to the main charge. Moreover, as a practical matter, the fact of having priors may affect the fixing of the penalty under the main charges, that is, whether the sentences should run consecutively or concurrently.
For these reasons either the charge based on the challenged prior should be dismissed, or the alternative suggested in solution 4 should be permitted. We think that granting to the district attorney the alternatives mentioned in solution 4 is fair to both the state and to the accused. The district attorney may think it most important that appellant be declared an habitual, and may feel that such is so important that he is willing to risk an acquittal of the main charge. The accused is either entitled to a dismissal of the prior or is entitled to a new trial on all issues. Such solution seems in accord with public policy, and does not violate the concept that the two charges are integrally connected.
The judgment is reversed and the entire cause demanded to the trial court, with directions to that court that, if within twenty days after the filing of the remittitur in that court the district attorney shall apply for an order dismissing that portion of the information charging appellant with 'housebreaking and larceny' and if such application is granted, then the court, in the exercise of its discretion upon the facts and circumstances of the case, shall resentence appellant upon the four charges of which he stands convicted and upon the unchallenged prior of 'burglary and grand larceny,' and shall delete from its judgment [258 P.2d 104] the adjudication that appellant is an habitual criminal. If the district attorney so elects, the judgment as modified and the order denying the motion for a new trial shall stand affirmed. If the district attorney shall not within the twenty-day-period make such application, the judgment in its entirety and the order denying the motion for a new trial are reversed, and a new trial of the entire cause ordered.
BRAY and FRED B. WOOD, JJ., concur.