Bartges, Application of
| Decision Date | 06 April 1955 |
| Docket Number | Cr. 5643 |
| Citation | 282 P.2d 47,44 Cal.2d 241 |
| Court | California Supreme Court |
| Parties | Application of Warren E. BARTGES for Writ of Habeas Corpus. |
Lowell Lyons, Los Angeles, for petitioner.
S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Robert Wheeler, Deputy Dist. Attys., Los Angeles, for respondent.
In this habeas corpus proceeding the ultimate question is whether the District Court of Appeal, after modifying consecutive sentence judgments in two consolidated criminal cases by strking out findings of two prior convictions, has power to itself implicitly determine upon the changed record whether probation shall be granted or denied and whether the sentences shall run cumulatively or concurrently, or must remand the cause to the trial court for such determinations and appropriate proceedings. We conclude that petitioner is entitled to the writ, not to be discharged from custody of the sheriff but to be produced in the superior court for proceedings appropriate to the state of the record as hereinafter explained.
Petitioner was convicted of one count of grand theft and one count of forgery and it was found that he had suffered three prior convictions of felony. Probation was denied; the judgments which were thereupon entered recited the three prior convictions and ordered that the sentences run consecutively. Defendant appealed and the District Court of Appeal affirmed the judgments in People v. Bartges (1954), 126 Cal.App.2d 763, 776, 273 P.2d 49, substance, inter alia, that 'Since appellant was shown to have been convicted of at least three prior felonies' it could not be said that the trial court abused its discretion in denying probation and in ordering that the sentences run consecutively. There was no petition for rehearing or for a hearing in this court, and the judgment of the District Court of Appeal became final.
After petitioner had filed the petition for habeas corpus which is now before this court, the District Court of Appeal recalled its remittitur and modified the trial court's judgments to recite only one prior conviction. However, it did not remand the cause for determination by the trial court as to whether upon the changed record probation should be granted or denied, and whether, if reimposed, the sentences should run concurrently or consecutively, and for resentencing, if and as appropriate. Instead, the District Court of Appeal affirmed the judgments as modified by it. (People v. Bartges (1954), 128 Cal.App.2d 496, 275 P.2d 518.)
Petitioner (subject to bail as fixed by the superior court) is in the custody of the sheriff of Los Angeles County and stay of execution has been granted by the superior court 'to the time when the application to the State Supreme Court has been determined and to the time within which an appeal to the United States Supreme Court may be perfected.'
Petitioner complains that the trial court's determination that his sentences should run consecutively rather than concurrently was based on its mistaken belief as to the number of prior convictions which he has suffered. The record supports this contention to the extent and for the reasons hereinafter stated. Petitioner further contends that the trial court violated due process by upholding the refusal of a witness, called by petitioner, to testify on the ground that he might incriminate himself (U.S.Const. Amendment V; Cal.Const. art. I, § 13; Code Civ.Proc. § 2065). This contention was correctly disposed of on petitioner's appeal from the judgments of conviction (People v. Bartges (1954), supra, 126 Cal.App.2d 763, 273 P.2d 49).
The judgments of conviction recited that 'the Court * * * found allegations of prior convictions * * * true, to-wit: Arson, a felony (in Oregon in 1932) * * *; Larceny and Larceny by Bailee, felonies (in Oregon in 1941), * * * Grand Theft, a felony (in Arizona in 1949),' with service of terms in the respective state prisons. Before the District Court of Appeal petitioner contended, among other things, that two of the prior convictions were not proved. As petitioner points out, although exemplified copies of the Oregon conviction of larceny and larceny by bailee and of the Arizona conviction of grand theft were produced by the prosecuting attorney and numbered for identification, such copies were not offered or received in evidence; instead, the prosecuting attorney moved 'to dismiss the second and third prior convictions as alleged in the information' and the trial court granted the motion. The District Court of Appeal, perhaps misled by the fact that the index to the reporter's transcript mistakenly shows that such exemplified copies were in evidence, and not having had its attention directed to the fact of dismissal, and presuming the judgments to be correct, rejected the contention of petitioner that the prior convictions had not been established (at pages 774-776 of 126 Cal.App.2d, at pages 55-56 of 273 P.2d).
The reason for the prosecuting attorney's not offering evidence of the two prior convictions, and for moving to dismiss the charges, was stated by him at the trial. He seems to have been of the opinion that the prior convictions should not be charged and proved because they were adjudications that the defendant had committed acts which, had they been committed in California, would not have amounted to grand theft as defined by the law of this state (theft of money or property of a value exceeding $200 (Pen.Code, § 487)). This appears from the statement of the prosecuting attorney that 'I understand now that the dividing line between petty theft and grand theft in Arizona is $50 and in Oregon the dividing line is $35, so although those would stand as felony convictions in the other States, they would not be felony convictions in California.' Although this court, as required by statute since 1927 (Stats. 1927, p. 110; Code Civ.Proc., § 1875(3)), takes judicial notice of the statutory definition of a crime in a sister state (see In re McVickers (1946), 29 Cal.2d 264, 278, 176 P.2d 40), the District Court of Appeal did not judicially notice the Oregon and Arizona statutory delineations between grand and petty theft referred to in the quoted statement of the prosecuting attorney; it mistakenly said (at page 775 of 126 Cal.App.2d, at page 56 of 273 P.2d), 'There being no evidence to the contrary, it will be assumed that the law with respect to the crimes charged as prior convictions in the sister states is the same as it is in California.'
After the decision of the District Court of Appeal became final petitioner filed the petition for habeas corpus which is now before us. He contends, in effect, that the superior court exceeded its jurisdiction in finding him guilty of two prior convictions the charges of which had been dismissed and which were not supported by proof, and that the District Court of Appeal likewise exceeded its jurisdiction in affirming those judgments. He points to the District Court's holdings that 'Since appellant was shown to have been convicted of at least three prior felonies it cannot be said that in imposing consecutive sentences herein the court was improperly influenced to the prejudice of appellant by the prior conviction of larceny by bailee in the State of Oregon,' and that 'we cannot say that the denial of probation under such circumstances, amounted to an abuse of discretion' (at page 776 of 126 Cal.App.2d at page 56 of 273 P.2d). This court issued an order to show cause, and the sheriff filed his return.
Thereafter the attorney general advised the District Court of Appeal of an entry in the clerk's transcript on appeal which apparently had not been previously directed to the attention of that court by either party to the appeal. Such entry shows that during the trial 'Motion of the District Attorney to dismiss the second and third prior convictions as alleged in the information is granted.' The District Court of Appeal (People v. Bartges (1954), supra, 128 Cal.App.2d 496, 275 P.2d 518) determined that
The District Court of Appeal recalled its remittitur. It noted the fact that petitioner urged 'that the improper finding of three prior convictions resulted in improper imposition of consecutive sentences' and modified its original order of full affirmance to provide that 'The judgments are modified by strking therefrom the finding of the truth of the second and third prior conviction (sic),' but as hereinabove indicated, instead of thereupon reversing the judgments and remanding the cause to the trial court for determination of the questions as to whether, with the findings as to the two prior convictions stricken out, probation should be granted or denied and whether the sentences, if to be reimposed, should run cumulatively or concurrently it impliedly and implicitly undertook to itself make those determinations by ordering that 'as so modified the judgment and order are affirmed.' (People v. Bartges (1954), supra, 128 Cal.App.2d 496, 275 P.2d 518, 519.)
The sheriff then filed a supplemental return which shows that petitioner is held under a modified abstract of judgments which show only one prior conviction (of arson). Therefore, petitioner's contention that the judgments were incorrect and beyond the power of the superior court to make (and the...
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