People v. Dunlop

• Citation: 227 P.2d 281,102 Cal.App.2d 314
• Decision Date: 15 February 1951
• Docket Number: Cr. 4595
• Court: California Court of Appeals
• Parties: PEOPLE v. DUNLOP et al.

Page 281

227 P.2d 281

102 Cal.App.2d 314

PEOPLE v. DUNLOP et al.

Cr. 4595.

District Court of Appeal, Second District, Division 2, California.

Feb. 15, 1951.

Fred N. Howser, Atty. Gen., and Howard S. Goldin, Deputy Atty. Gen., for the People.

Each defendant in propria persona.

MOORE, Presiding Justice.

Appellants were convicted of robbery in May, 1946. The remittitur from this court was filed in the court below in May, 1947. In September, 1950, acting in propriis personis they filed their petition for a writ of error coram nobis or for writ of habeas corpus as an alternative remedy on the ground that they had been deprived of their liberty without due process of law. The court below denied their petition for good reasons as will presently appear.

They argue that the proceedings had upon the information accusing them were void in that no order was made authorizing an amendment to the pleading. There is not the faintest proof that any pleading other than the original information was filed. In truth, there is no showing of an error of any kind committed on the trial or of any concealment of a fact relevant to the issues under investigation or of the failure of the prosecutor or the court to protect such rights as appellants had under the constitutions and laws. He who assigns prejudicial error of the trial court must affirmatively establish such error in order to gain any advantage therefrom. People v. Russell, 156 Cal. 450, 458, 105 P. 416. Statements in appellants' petition or in their brief will not be considered as proof of their contentions. Only the record will be scrutinized. El Rio Oils (Canada) Ltd. v. Pacific Coast Asphalt Company, 95 Cal.App.2d 186, 190, 213 P.2d 1.

Appellants declared in their application for the writ that no information was filed accusing them of being 'habitual criminals,' under section 644 of the Penal Code. That section was not designed to create a new type of crime or any crime. Ex parte McVickers, 29 Cal.2d 264, 271, 176 P.2d 40. The only offense of which they were accused was that alleged and for which they were tried. The punishment meted out to them was for the robbery of which they were convicted. The prior convictions had given them a new status by reason whereof, upon conviction for a subsequent felony, the penalty for the latter was increased. Ibid. While the establishment of their habitual criminality will deprive them of an early parole, it does not constitute a conviction for a separate offense. That prior convictions are not elements of a separate offense or of that alleged in the accusation is settled law. Ibid. They merely aggravate the position of one accused of the primary offense in that he is by reason of his former imprisonment placed in the classification of those who may never be reformed. Such classifying does no violence to any privilege guaranteed by either the state or the federal constitution. People v. Richardson, 74 Cal.App.2d 528, 542, 169 P.2d 44. Appellants knew from the allegations of prior felonies that the terms of their imprisonment on conviction would be longer.

Section 644, supra, does not place an accused person with prior convictions in jeopardy by reason of such former conviction; neither is it an ex post facto law. People v. Rosencrantz, 95 Cal.App. 92, 95, 272 P. 786; In re Rogers, 20 Cal.App.2d 397, 402, 66 P.2d 1237; Ex parte McVickers, supra. And it does not deny equal protection of the law vouchasfed by the Fourteenth Amendment. People v. Floth, 8 Cal.App.2d 600, 602, 47 P.2d 817; People v. Israel, 91 Cal.App.2d 773, 785, 206 P.2d 62; People v. Maddox, 75 Cal.App.2d 478, 479, 171 P.2d 561.

Appellants contend that their prior convictions were prejudicially alleged against them because they had not been legally discharged after such prior convictions and 'are still under sentence thereunder.' Section 644 makes no requirement that one accused of a felony must either be in prison or have completed his term to constitute a 'prior conviction.' To warrant a person's conviction as an habitual criminal under the statute besides the accusatory clause the indictment must allege that he has been previously twice convicted upon charges separately brought and tried, that he has served separate terms in a state or federal prison for any of the crimes listed. Such allegation and proof may be made even though the accused has been pardoned, People v. Biggs, 9 Cal.2d 508, 510, 71 P.2d 214, 116 A.L.R. 205, or has committed the second crime while on parole, In re Brady, 5 Cal.2d 224, 225, 53 P.2d 945, and it is not essential that the defendant must have served the full term of his sentence under the prior conviction. People v. Carkeek, 35 Cal.App.2d 499, 501, 96 P.2d 132; Spivey v. McGilvray, 29 Cal.App.2d 357, 360, 84 P.2d 256; People v. Martin, 78 Cal.App.2d 340, 342, 177 P.2d 813. Not only were the prior convictions alleged but appellants severally pleaded the truth of such allegations and that was sufficient to support the judgments of habitual criminality on the part of each of them.

The writ of error coram nobis was properly denied appellants for the reason that all the alleged errors of the court which tried them for their crime and all other facts alleged in their petition were known to them at the time they made their motion for a new trial as well as at the time of their appeal, People v. Dunlop, 79 Cal.App.2d 207, 179 P.2d 658, or could by the exercise of reasonable diligence have been discovered. For an applicant to be entitled to such writ he must show at least that he could not have discovered the facts he alleged at any time substantially earlier than the time of his motion for the writ. People v. Adamson, 34 Cal.2d 320, 326, 210 P.2d 13. Since its purpose is to secure relief where no other remedy exists it is incumbent upon a convicted person to take advantage of every remedy provided by law to defeat the hated sentence. If the judgments that appellants were habitual criminals were not supported by evidence that fact was known when they presented their motions for new trials. Also, if they were denied the guaranties of the Fourteenth Amendment to the federal constitution they might at least have mentioned such fact on their appeal. Such points having been ignored when they might have been made the theme for an appropriate argument on appeal cannot be reviewable by means of a writ of error coram nobis. People v. James, 99 Cal.App.2d 476, 222 P.2d 117; People v. Ellis, 99 Cal.App.2d 188, 221 P.2d 258; People v. Baker, 92 Cal.App.2d 623, 625, 207 P.2d 58. Moreover, appellants' petition makes no pretense of diligence or of excuse for their negligence in waiting for over three years to become infected with the virus of a zeal to escape the penalties for their sins by a remedy of limited scope. In the absence of such showing the court below was obliged to deny their petition for that writ. People v. Emery, 99 Cal.App.2d 173, 221 P.2d 223.

Their ...