People v. Burns

• Decision Date: 31 May 1960
• Docket Number: Cr. 3726
• Citation: People v. Burns, 5 Cal.Rptr. 301, 181 Cal.App.2d 480 (Cal. App. 1960)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George BURNS, also known as Samuel Lego, Defendant and Appellant.

Page 301

5 Cal.Rptr. 301

181 Cal.App.2d 480

PEOPLE of the State of California, Plaintiff and Respondent, v.George BURNS, also known as Samuel Lego, Defendant and Appellant.

Cr. 3726.

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

May 31, 1960.

Robert M. Brilliant, Albany, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith and Edward P. O'Brien, Deputy Attys.Gen., for respondent.

TOBRINER, Justice.

Convicted of two felonies in California, and admitting, in the Superior Court of Alameda County, four charged prior out-of-state felony convictions, appellant claims that his adjudication as an habitual criminal fails upon the record's lack of proof that the foreign offenses would have been felonies in California had the acts been committed here, as required by section 668 of the Penal Code.The judicial notice which we may take of the laws of sister states and an analysis of their provisions dispose of appellant's contentions.In re McVickers, 1946, 29 Cal.2d 264, 278, 176 P.2d 40;Code of Civ.Proc. § 1875, subd. 3;Penal Code, § 1102.

On April 27, 1959, the district attorney of Alameda County filed an information accusing the appellant of having committed three felonies on March 26, 1959, within the city of Oakland: burglary of the first degree, and two counts of assault with a deadly weapon.This pleading also alleged that appellant had been convicted (1)'the 15th day of December, 1928 * * * in * * * Michigan * * * of a felony, to wit, Larceny from the person * * *'; (2)'the 22nd day of September 1934 * * * in * * * Ohio * * * of a felony, to wit, Burglary * * *'; (3)'the 2d day of August, 1939, * * * in * * * Michigan * * * of a felony, to wit, Breaking and Entering * * *'; (4)'the 26th day of August, 1947 * * * in * * * Ohio * * * of a felony, to wit, burglary * * *'; (5)'the 26th day of August, 1947 * * * in * * * Ohio * * * of a felony, to wit, Grand Larceny * * *.'At the trial, the court, granting the state's motion to dismiss this last charged prior offense, read the other charged prior felonies to appellant, who then admitted suffering these convictions and serving state prison terms as punishment.Upon the jury's finding of appellant's guilt of two felonies, burglary of the first degree and assault with a deadly weapon, the court rendered a judgment of conviction and adjudged appellant an habitual criminal within the meaning of section 644(a) of the Penal Code.

Appellant charges reversible error in the record's void of proof that these Ohio and Michigan offenses would have constituted California felonies of the type enumerated in section 644(a) had appellant so conducted himself in California.In construing this statute upon a petitioner's writ of habeas corpus attacking his habitual criminal adjudication, the Supreme Court, in In re McVickers, 1946, 29 Cal.2d 264, 267, 176 P.2d 40, 43, supra, said: 'It is settled that 'In order to adjudge a defendant an habitual criminal the test is not whether he shall have been twice convicted of any felonies, but whether he shall have been twice convicted of felonies enumerated in section 644 of the Penal Code.'* * * It is also settled that the crimes enumerated in section 644 must be understood to be crimes as defined in the laws of California and, if committed elsewhere, regardless of the names by which they may be designated, must in their substance come within California's definitions of the enumerated crimes.'

We must therefore consider, taking Ohio and Michigan in that order, whether 'the minimum elements of the foreign offense[s] are substantially similar to the minimum elements of one of the offenses enumerated in Penal Code, section 644(a).'People v. Morton, 1953, 41 Cal.2d 536, 539, 261 P.2d 523, 525.

Since the record does not disclose the precise dates upon which appellant committed these prior crimes we shall consider the Ohio law of burglary retroactively from 1947 to 1910, the date of appellant's birth.Chapter 4, sections 12437 and 12438 of the General Code of Ohio(1910), respectively, entitled 'Burglary in an inhabited dwelling' and 'Burglary in an uninhabited dwelling or other building' contains the burglary law of Ohio for this period.However, since section 12438¹ also includes attempts to break and enter, while SECTION 459 OF THE CALIFORNIA PENAL CODE² does not, the two Ohio burglary convictions are not necessarily the equivalent of a California burglary as required by section 644(a); and since this court must assume that appellant's conviction under the Ohio law was based upon the least punishable offense (In re McVickers, 1946, 29 Cal.2d 264, 278, 176 P.2d 40, supra)appellant's habitual criminality conviction cannot be sustained upon either of the Ohio convictions.

Since, however, section 644, subdivision (a) of the Penal Code, requires only two prior felony convictions, appellant's habitual criminal conviction may be properly predicated upon the two Michigan crimes if the minimum elements of the foreign offenses are 'substantially similar to the minimum elements of one of the offenses enumerated * * *.'People v. Morton, 1953, 41 Cal.2d 536, 539, 261 P.2d 523, supra in that section.

Turning to appellant's 1928 Michigan conviction of 'Larceny from the person,'we find that this conviction could only be based upon section 15297 of the 1915 Michigan Compiled Laws, this provision having remained unchanged at all times prior to appellant's conviction and since his birth.Compiled Laws of Michigan 1915, ch. 257, Sec. 17(15297), pp. 5293, 5297;Compiled Laws of Michigan 1929, ch. 282, Sec. 17, p. 5898;Compiled Laws of Michigan 1897, ch. 320, Sec. 17, pp. 3434, 3439.

Section 15297 reads, 'Every person who shall commit the offense of larceny by stealing from the person of another, shall be punished by imprisonment in the state prison not more than five years * * *.'Section 487 of the California Penal Code similarly provided in 1928 that 'Grand theft is theft committed in any of the following cases: * * * 2.When the property is taken from the person of another. * * *'Stats.1927, ch. 619, p. 1047; defining crime as grand larceny Stats. 1923, ch. 129, p. 271,Stats.1919, ch. 150, p. 235,Stats.1907, ch. 90, p. 113.Since appellant's 1928 Michigan conviction would have constituted grand theft in California (Pen.Code, § 490a;Stats.1927, ch. 619, § 7, p.1047) it falls within Penal Code, § 644, subdivision (a).

Appellant's 1939 Michigan conviction of 'Breaking and Entering' likewise falls within section 644(a) of the Penal Code.This conviction could be founded upon a violation of either section 16948 or 16949 of the 1929 Michigan Compiled Laws.While these two code provisions are substantially modified versions of sections 15290 to 15294 of the 1915 Michigan Compiled Laws these latter sections were expressly repealed in 1925 without any savings provision for the prosecution of offenses committed prior to such repeal.Public Acts of Michigan 1925, p. 523;Public Acts of Michigan 1929, pp. 28-30.Such a savings provision is necessary in Michigan for the prosecution of prior offenses subsequent to the repeal of a criminal statute.People v. Lowell, 1930, 250 Mich. 349, 230 N.W. 202.

We therefore consider sections 16948and16949 of the 1929 Michigan Compiled Laws, as amended byPublic Acts of Michigan 1931, chapterXVI, page 943.Section 16948 reads: 'Any person who shall break and enter in the night time with intent to commit any felony, or any larceny therein, any dwelling house, tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat or ship, railroad car or any private apartment in any of such buildings, shall be guilty of a felony * * *.'(...