People v. Morton

• Decision Date: 25 September 1953
• Docket Number: Cr. 5503
• Citation: 41 Cal.2d 536,261 P.2d 523
• Court: California Supreme Court
• Parties: PEOPLE v. MORTON.

Page 523

261 P.2d 523

41 Cal.2d 536

PEOPLE v. MORTON.

Cr. 5503.

Supreme Court of California, in Bank.

Sept. 25, 1953.

George Nye, Public Defender, and Rudolf H. Michaels, Asst. Public Defender, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Defendant was convicted of three counts of burglary of the first degree and one count of attempted burglary of the first degree, for which he was sentenced to serve consecutive terms. He was also adjudged an habitual criminal under Penal Code, section 644(a). He appeals from that part of the judgment adjudging him an habitual criminal, and from the order denying his motion for a new trial on the issue of the alleged second prior conviction.

The appeal is presented by stipulation on a reporter's transcript limited substantially to the evidence relating to the alleged second prior conviction. The information alleged tht defendant was convicted in February 1950, 'of a felony, to wit, housebreaking and larceny,' and had served a term in the Tennessee State Penitentiary pursuant to such conviction. To prove this conviction the People introduced into evidence, over the objection of defendant, a fingerprint record card certified to be from the files of the Tennessee State Penitentiary. This card contained the fingerprints of a person who had served a term in that penitentiary for a crime designated by the abbreviation 'HBL.' Lawrence Waldt, a sergeant of the Sheriff's Office of Alameda County, and an expert in fingerprint identification, testified that the fingerprints on the card matched those of defendant taken the previous day. The sergeant was then asked if he was familiar with the 'abbreviations used by criminologists and the police, the F.B.I., for various crimes * * *.' He replied that he was familiar 'to some extent.' To the further question whether he was familiar with the abbreviation 'HBL' he replied: 'The Federal Bureau of Investigation puts out a Bulletin of Standardized Abbreviations, and 'HB' is, as near as my memory stands, correct for the abbreviation for housebreaking, and 'L' is the desired abbreviation for larceny.' On cross-examination, Sergeant Waldt admitted that he did not know the elements of the offense or offenses designated by the initials 'HBL,' as those elements are defined in the laws of Tennessee. This evidence was all that was introduced by the People to sustain the allegation that defendant had suffered a second prior conviction 'of a felony, to wit, housebreaking and larceny * * *.'

A sentence of life imprisonment, which follows an adjudication that the defendant is an habitual criminal, is a serious one. The People must prove the alleged prior convictions beyond a reasonable doubt. See In re McVickers, 29 Cal.2d 264, 278, 176 P.2d 40; In re Lamey, 85 Cal.App.2d 284, 289, 193 P.2d 66; and cases there cited. If the convictions were suffered in other states for offenses that go by different names from those in California, the People must prove that the minimum elements of the foreign offense are substantially similar to the minimum elements of one of the offenses enumerated in Penal Code, section 644(a). In re McVickers, supra, 29 Cal.2d 264, 267, 176 P.2d 40; In re Wolfson, 30 Cal.2d 20, 23, 180 P.2d 326.

Defendant admits the first prior conviction alleged in the information. With respect to the alleged second prior conviction, he admits that the fingerprints on the record card introduced by the People are his, and that he served a term in the Tennessee State Penitentiary. He contends, however, that the evidence introduced at the trial was insufficient to prove a second prior conviction of one of the felonies enumerated in Penal Code, section 644(a).

The fingerprint record card from the Tennessee State Penitentiary showing defendant's imprisonment was properly admitted in evidence under Penal Code, section 969b. ¹ The controlling question is whether that card and the testimony of the sergeant from the Sheriff's Office are sufficient to prove that defendant had suffered the alleged second prior conviction. We have concluded that they are not.

Although there is no deficiency in the type of document introduced by the People, there is a deficiency in the information it contains. It does not show the offense for which defendant was convicted. It merely shows an entry that defendant was convicted of an offense that an official of the Tennessee State Penitentiary indicated by the initials 'HBL.' These initials are in no way explained by Tennessee authorities. The People rely, instead, on the testimony of a sergeant of the Sheriff's Office who admitted that he did not know the elements of the offense or offenses designated by the initials 'HBL,' as those elements are defined in the laws of Tennessee. His testimony showed only that, 'as near as my memory stands,' in the Federal Bureau of Investigation's 'Bulletin of Standardized Abbreviations' the initials 'HB' stand for housebreaking, and the initial 'L' for larceny. Such a system of abbreviation might be used by the Federal Bureau of Investigation, or by the police of California and other states, but proof of that fact is inapposite as proof of the meaning of these initials on the card in question unless it is also shown by competent evidence that this system of abbreviation is in use in the Tennessee State Penitentiary. It does not strain the imagination to identify several other possible charges with the initials 'H,' 'B,' and 'L.' ² Furthermore, there is nothing to indicate that the initials stand for a single offense, 'housebreaking with intent to commit larceny,' as the People contend, rather than two or three separate offenses. If the information contained in the records of foreign penal institutions in which a defendant was imprisoned does not make clear the nature of his offense, it does not seem unreasonable to require the People to ascertain the particular statute that the defendant violated, or to obtain a certified copy of the judgment of conviction for the purpose of proving the elements of the offense in question.

Since the evidence is insufficient to support the finding of the trial court that defendant suffered the alleged second prior conviction, the question arises as to the order that should now be made by this court. The precedents are conflicting:

(1) In some cases the order reversed the entire judgment and remanded the cause for a new trial on all issues, including the charge of the primary offenses as well as that of the prior convictions. People v. Nicholson, 1939, 34 Cal.App.2d 327, 93 P.2d 223; People v. Richardson, 1946, 74 Cal.App.2d 528, 169 P.2d 44. Cf. People v. Ysabel, 1938, 28 Cal.App.2d 259, 263, 82 P.2d 476.

(2) In other cases the order was similar to (1) above, but specified a period of time within which the District Attorney could apply for an order dismissing the charge based on the challenged prior convictions. If the application were made and granted, the trial court was directed to resentence the defendant on the basis of the primary offenses of which he was found guilty and any unchallenged prior convictions. If no application were made, or if it were made and denied by the trial court, the court was directed to grant a new trial on all issues. People v. Carrow, 1929, 207 Cal. 366, 278 P. 857; People v. Chadwick, 1906, 4 Cal.App. 63, 87 P. 384, 389.

(3) In certain cases the order set aside the finding that the defendant suffered the challenged prior conviction. In some of these cases the judgment was modified by vacating the adjudication that the defendant was an habitual criminal, and in others the cause was remanded for resentencing on the basis of the primary offenses of which the defendant ws found guilty and any unchallenged prior convictions. People v. Eppinger, 1895, 109 Cal. 294, 41 P. 1037; People v. Murray, 1940, 42 Cal.App.2d 209, 108 P.2d 748; People v. McChesney, 1940, 39 Cal.App.2d 36, 102 P.2d 455; People v. Lohr, 1938, 28 Cal.App.2d 397, 82 P.2d 615; People v. Morrison, 1938, 26 Cal.App.2d 616, 80 P.2d 94; People v. Pace, 1934, 2 Cal.App.2d 464, 38 P.2d 202; People v. Shaw, 1934, 137 Cal.App. 533, 30 P.2d 1031; People v. Arnest, 1933, 133 Cal.App. 114, 23 P.2d 812; People v. Wagner, 1926, 78 Cal.App. 503, 248 P. 946; People v. Foster, 1934, 3 Cal.App.2d 35, 39 P.2d 271; People v. Hayes, 1934, 3 Cal.App.2d 59, 39 P.2d 213; People v. D'A Philippo, 1934, 220 Cal. 620, 32 P.2d 962.

(4) In other cases the order was similar to (3) above but also remanded the cause fro a new trial on the issue of the challenged prior conviction. People v. Willison, 1931, 116 Cal.App. 157, 2 P.2d 543; People v. Darling, 1932, 120 Cal.App. 453, 7 P.2d 1094.

Orders of types (1) and (2) above have been justified ³ on the ground that the prior conviction charge is one of the issue in the trial for the new offense and should be passed upon by the same jury that passes on the question of guilt of the new offense. Thus, in People v. Nicholson, supra, 34 Cal.App.2d 327, 333, 93 P.2d 223, 229, the court said: 'The proving of such prior convictions is a statutory proceeding and since the amendment of section 969a of the Penal Code, in 1931, there is no statutory authorization for passing upon the question as to whether such conviction have been suffered other than in connection with the new offense charge and by the same jury. People v. Ysabel, (1938) 28 Cal.App.2d 259, 82 P.2d 476.' The reasoning is erroneous in os far as it requires a new trial on all issues in cases where on appeal the error found is confined to the prior conviction charge. The court in the Nicholson case adopted an argument made in People v. Ysabel, supra, but the latter case was not in point. The controlling question there ws the propriety of the trial court's action in pronouncing judgment on the primary offense and ordering the defendant Ysabel held for further trial on the prior conviction charges...