Dabney, In re

• Decision Date: 31 October 1968
• Docket Number: Cr. 7038
• Citation: 72 Cal.Rptr. 573
• Court: California Court of Appeals Court of Appeals
• Parties: In Israel DABNEY on Habeas Corpus.

Page 573

72 Cal.Rptr. 573

In Israel DABNEY on Habeas Corpus.

Cr. 7038.

Court of Appeal, First District, Division 1, California.

Oct. 31, 1968.

C. William Simmons, San Francisco, for petitioner.

Thomas C. Lynch, Atty. Gen. of California, Derald E. Granberg, Don Jacobson, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

These proceedings involve the question of the validity of a prior conviction for the possession of heroin allegedly suffered by petitioner in 1956 in the State of Illinois. Petitioner, who was sentenced to state prison following a verdict which found him guilty of possession of heroin in this state in 1965, seeks to be relieved of the additional penalty resulting from an existing adjudication that he suffered the prior conviction (see Health & Saf. Code, § 11500). He also attacks his latest conviction because at the trial which resulted in that judgment his testimony was impeached by reference to his prior conviction. (See People v. Coffey (1967) 67 Cal.2d 204, 218-219, 60 Cal.Rptr. 457, 430 P.2d 15.) It is concluded that defendant is entitled to be relieved of the adjudication that he suffered a prior conviction, but that on the record presented his present conviction should not be set aside.

Background

The prior conviction was first charged by amendment to the information filed when defendant was arraigned on the charge of possession of heroin on April 1, 1965. Although he originally denied the prior, he subsequently admitted it when rearraigned at the time of his trial September 2, 1965, and again in testifying at that trial. ¹ He first advanced the contention that the prior conviction was invalid because of lack of counsel and effective waiver of counsel in his brief on appeal from the judgment in the latter proceedings. This court was unable to consider the point because no record had been made below. (People v. Dabney (1967) 250 Cal.App.2d 933, 944-946, 59 Cal.Rptr. 243; and see People v. Williams (1967) 67 Cal.2d 226, 231-232, 60 Cal.Rptr. 472, 430 P.2d 30; and People v. Merriam (1967) 66 Cal.2d 390, 398, 58 Cal.Rptr. 1, 426 P.2d 161.) The judgment was affirmed without prejudice to defendant's right to take appropriate proceedings to collaterally attack the adjudication that he had suffered a prior conviction (id. 250 Cal.App.2d p. 950, 59 Cal.Rptr. 243). The decision affirming the judgment was rendered May 15, 1967. Hearing in the Supreme Court was denied July 12, 1967, and the remittitur was filed below on July 18, 1967.

On August 30, 1967 petitioner filed with this court his 'Petition for Writ of Error Coram Nobis/Motion to Vacate' in which he attacks his prior conviction because he had not been advised of his right to the aid of counsel, did not know he had a right to the aid of counsel, and did not waive his right to the aid of counsel. He further asserts that despite his admissions at the trial, the prior offense was a misdemeanor and not a felony (cf. People v. Dabney, supra, at pp. 946-950, 59 Cal.Rptr. 243). ² Consideration of the latter question is rendered moot since the conviction is found to be invalid.

Attached to the petition is what appears to be a transcript of proceedings before The Municipal Court of Chicago. They reveal that on January 23, 1956 an information was filed charging petitioner, as Israel Daney, Jr., with possession of heroin in violation of 'Par. 192-2 Chap. 38 Illinois Revised Statutes 1953'; that petitioner who had theretofore been arrested was present in court and was ordered held to answer for the offense charged subject to release on bail; and that on the motion of the state, proceedings were postponed and set for trial on February 9, 1956. On February 9th, the record recites, 'Now come the people by the State's Attorney and the defendant as well in his own proper person as by counsel also come, and said defendant being duly arraigned and forthwith demanded of and concerning the charge alleged against him in the information herein how he will acquit himself thereof for a plea in that behalf say that he is not guilty in manner and form as charged in said information.

'Said defendant being duly advised by the Court as to his right to a trial by jury in this cause, elects to waive a trial by jury, and this cause is by agreement in open Court between the parties hereto, submitted to the Court for trial without a jury.' After hearing the evidence the court found petitioner guilty and sentenced him to five years in the House of Correction of the City of Chicago, which, according to the recitals in the transcript, was authorized by contract with the county to receive persons sentenced by the sentencing court.

In his affidavit attached to the petition the petitioner alleged that he was arrested without a warrant on January 20, 1956, subsequently advised of the charges while in jail and taken to court. He alleges 'that I was thereafter taken to court; that I was unable to hire an attorney of my own choice and that at no time did anyone advise me of my rights to an attorney; that I did not know that I had a right to have an attorney during any course of the proceedings; that at the time of my trial in the Illinois proceedings, that I was charged with a misdemeanor because at that time, I did not have any prior narcotics convictions, and that it was not the cus-tom [sic] of the Municiple [sic] courts to appoint indigent defendants counsels on misdemeanors, such as mine.'

The foregoing facts, if established, would render the prior conviction invalid. (In re Caffey (1968) 68 A.C. 815, 826, 69 Cal.Rptr. 93, 441 P.2d 933; People v. Coffey (1967) 67 Cal.2d 204, 214-215, 60 Cal.Rptr. 457, 430 P.2d 15; In re Woods (1966) 64 Cal.2d 3, 5-6, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce (1966) 64 Cal.2d 11, 13, 48 Cal.Rptr. 694, 409 P.2d 918; and In re Tucker (1966) 64 Cal.2d 15, 16, 48 Cal.Rptr. 697, 409 P.2d 921.) Since defendant's trial (September 7, 1965) occurred prior to the decision in In re Woods, supra (January 26, 1966), it is unnecessary to determine whether he waived the right to attack his prior conviction by failure to raise the question prior to his conviction. (See In re Caffey, supra, 68 A.C. at pp. 826-827, 69 Cal.Rptr. 93, 441 P.2d 933; and cf. People v. Dabney, supra, 250 Cal.App.2d 933, 945, 59 Cal.Rptr. 243.)

The Attorney General acknowledged that the petition could be treated as an application for a writ of habeas corpus to test the validity of petitioner's confinement which at the time was at San Quentin prison. (See Neal v. State of California (1960) 55 Cal.2d 11, 16, 9 Cal.Rptr. 607, 357 P.2d 839; discussion People v. Williams (1965) 238 Cal.App.2d 585, 595, 48 Cal.Rptr. 67; and Cal.Const., art. VI, § 10; and Gov.Code, § 69109.) He admitted that petitioner was not represented by counsel at the time of the alleged prior conviction, but sought an opportunity to secure records of the Illinois court which would show that petitioner waived his right to counsel. When it subsequently appeared that the records could not be located, an order to show cause why a writ should not issue striking the prior conviction from the record was issued.

With his return to this order to show cause, the Attorney General filed a declaration of the judge who presided over the arraignment, trial and sentencing of petitioner. The judge stated, '* * * due to the serious nature of the charge and of the penalty involved in this type of case, if the defendant was not represented by counsel, it was my custom and practice to advise said defendant of his right to have an attorney appointed to defend him and that were none desired, to secure a knowing and intelligent waiver of that right.' (See In re Caffey, supra, 68 A.C. 815, 825-826, 69 Cal.Rptr. 93, 441 P.2d 933; In re Tucker, supra, 64 Cal.2d 15, 17-19, 48 Cal.Rptr. 697, 409 P.2d 921; and In re Luce, supra, 64 Cal.2d 11, 13-14, 48 Cal.Rptr. 694, 409 P.2d 918; In re Johnson (1965) 62 Cal.2d 325, 330-331, 42 Cal.Rptr. 228, 398 P.2d 420.) The factual issues raised by the petition and the return were referred to the judge who presided over the petitioner's trial and sentencing in this state, to determine the following: '1. Was the petitioner advised of his right to counsel in the Illinois proceeding referred to herein? 2. If so, was there an intelligent waiver by the petitioner of his right to counsel?'

The report and findings of the referee disclose that he took testimony from petitioner and petitioner's wife and received in evidence the Illinois judge's affidavit and copies of the records of the Illinois proceedings. The referee concluded: '1. Petitioner, Israel Dabney, was not advised of his right to counsel in the Illinois proceeding entitled People vs. Israel Daney (Dabney), Municipal Court of Chicago, No. 56 MC 29248. 2. Petitioner, not having been advised of his right to counsel, made no intelligent waiver of that right.' An examination of the record before the referee discloses that the conclusions of the referee are supported by the evidence. They are adopted as the findings of this court.

The prior conviction must be stricken from the judgment convicting and sentencing petitioner. Since its invalidity removes the bar to petitioner's eligibility for probation (see Health & Saf. Code, § 11715.6; and People v. Atwood (1963) 221 Cal.App.2d 216, 219-220, 34 Cal.Rptr. 361), the judgment and sentence must be set aside, and the petitioner must be remanded to the trial court to be rearraigned for sentencing and for such further proceedings as may be provided by law.

There remains for consideration petitioner's contention that his conviction should be set aside because when he testified he was impeached by questioning which elicited his admission that he had been convicted of possession of heroin, a felony, eleven years previously in Chicago. (See People v. Dabney, supra, 250 Cal.App.2d at p. 943, fn. 3, 59 Cal.Rptr. 243.) In People v. Coffey, supra, the court ruled, 'We are convinced...