Finley, In re

• Decision Date: 18 March 1968
• Docket Number: Cr. 11721
• Citation: 68 Cal.2d 389,66 Cal.Rptr. 733,438 P.2d 381
• Court: California Supreme Court
• Parties: , 438 P.2d 381 In re William Joseph FINLEY on Habeas Corpus.

Page 733

66 Cal.Rptr. 733

68 Cal.2d 389, 438 P.2d 381

In re William Joseph FINLEY on Habeas Corpus.

Cr. 11721.

Supreme Court of California,

In Bank.

March 18, 1968.

William Joseph Finley, in pro. per., and Charles Boeggeman, Anaheim, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Raymond M. Momboisse and Edward A. Hinz, Jr., Deputy Attys. Gen., for respondent.

TRAYNOR, Chief Justice.

In 1946 a jury found petitioner guilty of first degree robbery. The information alleged and petitioner admitted prior convictions of burglary in the State of Washington in 1932 and first degree robbery in California in 1938, with service of a term of imprisonment for each. The Los Angeles County Superior Court adjudged petitioner an habitual criminal and sentenced him to life imprisonment. (Pen.Code, § 644, subd. (a).) ¹ Petitioner did not appeal. ²

In this habeas corpus proceeding petitioner attacks the determination of habitual criminality. He contends that the determination must fall because the 1932 Washington burglary conviction was not of an offense the minimum elements of which meet the California definition of burglary or of any other crime listed in section 644. Petitioner invokes propositions enunciated over vigorous dissents in In re McVickers (1946) 29 Cal.2d 264, 176 P.2d 40, and In re Seeley (1946) 29 Cal.2d 294, 176 P.2d 24, that permit the habeas corpus petitioner who challenges an habitual criminal adjudication a wider scope of review than is available when the writ is sought to review a judgment of conviction of crime. The McVickers majority concluded at page 270 of 29 Cal.2d, at page 44 of 176 P.2d that 'the writ can consistently be made available to a prisoner who has been adjudged an habitual criminal although in truth and fact he is not, without so enlarging its scope as to make it in effect * * * a writ of error to review the correctness of a conviction.'

Although Penal Code section 1025 provides that a defendant's admission that he has suffered a previous conviction charged in the accusatory pleading 'must, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings,' under the McVickers-Seeley line of cases the admitted 'fact of his having suffered such previous conviction' is not a conclusive admission that 'such previous conviction' was in law or fact of a felony listed in section 644. The McVickers-Seeley extension of habeas corpus permits the petitioner who has been adjudged an habitual criminal to go outside the record of the California prosecution that resulted in the determination of habitual criminality and to bring in the record of the challenged foreign prior conviction he is allowed to call the attention of the habeas corpus court to the law of the state where it was suffered; and he is allowed thus to show that the minimum adjudicated elements of the foreign crime are not those of a California felony enumerated in section 644. (In re Wolfson (1947) 30 Cal.2d 20, 23, 24, 180 P.2d 326; In re McVickers, supra, 29 Cal.2d at p. 267, 176 P.2d 40; In re Seeley, supra, 29 Cal.2d at p. 300, 176 P.2d 24.) The McVickers-Seeley line of cases holds also that unless the record before the habeas corpus court established the adjudicated elements of the previous offense, the court will assume that the prior conviction was for the least offense punishable under the foreign statute. (In re McVickers, supra, 29 Cal.2d at p. 278, 176 P.2d 40; see People v. Burns (1960) 181 Cal.App.2d 480, 483, 5 Cal.Rptr. 301; People v. Richardson (1946) 74 Cal.App.2d 528, 540, 169 P.2d 44.)

Here the only record of the 1932 Washington conviction now available, an authenticated copy of the judgment, sentence, and commitment, shows that petitioner was convicted of second degree burglary on his plea of guilty. Second degree burglary as defined by Washington statute is committed by entry with intent to commit any crime, whether misdemeanor or felony, or by innocent entry followed by the commission of any crime and breaking out. (Rem.Comp.Stat. § 2579.) ³ In California, however, the crime of burglary is committed by entry 'with intent to commit grand or petit larceny or any felony.' (Pen.Code, § 459.) Thus petitioner has established that his Washington conviction could have been based on acts not constituting burglary in California and he has therefore shown that 'the least adjudicated elements of the Washington offense are not equivalent to the elements of the similarly denominated California offense enumerated in section 644 of the Penal Code and the Washington conviction is not competent to support a determination of habitual criminality under that section.' (In re Pearson (1947) 30 Cal.2d 871, 876, 186 P.2d 401, 403.)

The Attorney General asks us to overrule the McVickers-Seeley line of cases and to adopt the rule urged in the dissenting opinion in Seeley, 29 Cal.2d at p. 303, 176 P.2d 24 (see also the dissent in McVickers, 29 Cal.2d at p. 281, 176 P.2d 40) that when an adjudication of habitual criminality is attacked by habeas corpus on the ground that the prior convictions were of crimes that do not meet the definition of offenses listed in section 644, review extends only to the trial court's jurisdiction to make such determination and is limited to the face of the record in the criminal proceeding that resulted in the determination. That is the normal scope of inquiry on habeas corpus when as here there is no issue of a fundamental constitutional deprivation. (See generally In re Jackson (1964) 61 Cal.2d 500, 503--504, 39 Cal.Rptr. 220, 393 P.2d 420; In re Raner (1963) 59 Cal.2d 635, 639, 30 Cal.Rptr. 814, 381 P.2d 638; Neal v. State of California (1960) 55 Cal.2d 11, 16--17, 9 Cal.Rptr. 607, 357 P.2d 839; In re McInturff (1951) 37 Cal.2d 876, 880, 236 P.2d 574; In re Bell (1942) 19 Cal.2d 488, 492--494, 122 P.2d 22.) Whatever may have been the merits of the extension of the scope of habeas corpus as announced by McVickers and Seeley in 1946, ⁴ however, their holdings have not led to reckless and ill-considered use of the writ to impair the finality of judgments; the application of their rules as to the extent of post-conviction collateral review has been limited to cases presenting the same narrow questions that were raised by McVickers and Seeley themselves.

The Attorney General urges that the McVickers-Seeley line of cases improperly permits relief without regard to established rules of policy (see In re Streeter (1967) 66 A.C. 35, 40--41, 56 Cal.Rptr. 824, 423 P.2d 976; In re Shipp (1965) 62 Cal.2d 547, 553, 43 Cal.Rptr. 3, 399 P.2d 571) that require the applicant for habeas corpus to excuse his failure to present his contention at trial and on appeal and to explain his delay in raising it on habeas corpus. The McVickers-Seeley use of the writ, however, does not permit the opening or reopening of questions calling for resolution on the basis of the testimony of witnesses who may have died or disappeared or whose memories have faded. Nor does a collateral attack on an habitual criminal adjudication on McVickers-Seeley grounds involve difficulties with respect to records of past convictions comparable to those raised by a constitutional attack based on the retrospective application of Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. (See In re Woods (1966) 64 Cal.2d 3, 8, 48 Cal.Rptr. 689, 409 P.2d 913.) The fact that an accused suffered a foreign conviction of a crime is made officially of record at the time and place of such conviction, and the law of the jurisdiction where he suffered it is judicially noticed. (In re McVickers, supra, 29 Cal.2d 264, 272, 276, 287, 176 P.2d 40; Pen.Code, § 969b; Evid.Code, §§ 453, 1530.) The least adjudicated elements of the prior conviction remain the same whether it is questioned in the trial court at the time of the determination of habitual criminality or on habeas corpus after such determination has become final. Neither the People nor the defendant can go behind those adjudicated elements in an attempt to show that he committed a greater, lesser, or different offense. (In re Norcutt (1948) 31 Cal.2d 743, 744, 192 P.2d 453; In re Wolfson, supra, 30 Cal.2d 20, 31, 180 P.2d 326; In re McVickers, supra, 29 Cal.2d 264, 276, 176 P.2d 40.)

The Attorney General argues, however, that if petitioner had questioned the sufficiency of the 1932 Washington conviction in 1946 when it was used as a basis of the habitual criminal adjudication, the People might have been able to prove by then existing but since vanished Washington records that in fact petitioner's conviction was of an offense equivalent to California second degree burglary. Since the only available record of the foreign conviction shows merely that it was for a named Washington offense, McVickers does not require the petitioners to bear the normal burden of one who seeks habeas corpus relief by proving that the Washington conviction was insufficient; instead he makes out its insufficiency simply by standing on the decisionally established assumption that the conviction was for the least offense punishable under the Washington statute. When we examine the applications that have been made of this anomalous rule giving the habeas corpus petitioner the benefit of a doubt in order to sustain his attack on the final determination of habitual criminality, we find only a narrowly limited change in the burden of proof on collateral attack upon a prior conviction used to increase punishment, not a general principle requiring the People repeatedly to bear the burden of defending final judgments of conviction.

We are not impressed by the argument that the Seeley and McVickers rules have operated unfairly to the state or conferred bonuses on prisoners for delay in attacking habitual criminal adjudications. At least since the 1927 amendment of ...