Streeter, In re

• Decision Date: 02 March 1967
• Docket Number: Cr. 10306
• Citation: 56 Cal.Rptr. 824,423 P.2d 976,66 Cal.2d 47
• Parties: , 423 P.2d 976 In re Wilbur Eugene STREETER on Habeas Corpus. In Bank
• Court: California Supreme Court

Page 824

56 Cal.Rptr. 824

66 Cal.2d 47, 423 P.2d 976

In re Wilbur Eugene STREETER on Habeas Corpus.

Cr. 10306.

Supreme Court of California,

In Bank.

March 2, 1967.

As Modified March 29, 1967.

Wilbur Eugene Streeter, in pro. per., and Lionel K. Hvolboll, Sacramento, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Harold F. Bradford and Daniel J. Kremer, Deputy Attys. Gen., for respondent.

PETERS, Justice.

Wilbur Eugene Streeter is presently confined in Folsom State Prison pursuant to a 1944 sentence pronounced after his conviction, upon a plea of guilty, for first degree robbery. He is also subject to a 1946 sentence pronounced after his conviction, following a nonjury trial, for escape--said escape sentence to commence, as formerly required by section 4530 of the Penal Code, at the time that defendant would otherwise have been discharged from said state prison.

It appears that prior to petitioner's 1944 robbery conviction he had been convicted of two prior felony offenses in the state of Ohio. One of these, a 1940 forgery conviction entered upon a plea of guilty, was charged against and admitted by petitioner when he was arraigned for sentence on the robbery conviction. The other, a 1937 conviction for burglary and larceny, also entered upon a plea of guilty, was not charged against petitioner at this time or at any time thereafter, although a discussion of it appears in the probation report prepared prior to sentencing on the robbery conviction. Petitioner alleges that both prior Ohio convictions, the one not formally charged against him as well as the one formally charged, 'have received active contemplation by Adult Authority members as prima facie evidence of past criminality which is a criterion of major importance in judgment of parole eligibility and/or fixing of term.' ¹ Petitioner further alleges as to each of these two convictions that he was not represented by counsel, was not advised of his right to have the assistance of counsel and did not waive his right to counsel, before entering his guilty pleas. He accordingly contends that each of the Ohio prior convictions should be withdrawn from the consideration of the Adult Authority in its determinations regarding parole eligibility and fixing of term. Habeas corpus is a proper remedy to test the propriety of proceedings before the Adult Authority. (In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948.)

In the recent case of In re Woods, 64 Cal.2d 3, 5, 48 Cal.Rptr. 689, 691, 409 P.2d 913, 915, the court quoted with approval the following language from United States ex rel. Savini v. Jackson, 2 Cir., 250 F.2d 349, 355: 'To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions elsewhere, necessarily it must assume the burden of meeting attacks on the constitutionality of such prior convictions.' In Woods the petitioner alleged that he had been denied the right to counsel as to two out-of-state prior convictions which had been utilized, along with a California robbery conviction, to obtain an adjudication of habitual criminal status (Pen.Code, § 644), and it was there determined that our burden required a present inquiry into the truth of petitioner's allegations. (In re Woods, supra, 64 Cal.2d 3, 5--8, 48 Cal.Rptr. 689, 409 P.2d 913; see also In re Tucker, 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921.) Similarly, in the case of In re Luce, 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918, it was concluded that our burden required an inquiry into the truth of such allegations relative to a prior misdemeanor sex offense utilized to elevate a second misdemeanor offense to felony status (see Pen.Code, § 314, subd. 2).

In each of the foregoing case the constitutional inquiry was sought relative to prior convictions that (1) had been subject to a California judicial determination, and (2) were directly relevant to determining either the substantive offense charged or the penal status sought to be established. The instant case differs in both respects. One of the prior convictions sought to be challenged, that is the 1937 burglary and larceny conviction, has never been subject to a California judicial determination because it was never formally charged against petitioner in this state. Furthermore, neither of the two prior convictions is directly relevant to a determination of the substantive offense charged or petitioner's status for penal purposes, for he has never been charged with habitual criminality and his present confinement derives only from the 1944 first degree robbery conviction. ²

We must therefore here determine whether the burden of constitutional inquiry which was articulated in Woods extends to a situation such as that at bar where California 'penal sanctions' depend upon the challenged prior convictions only in the sense that the Adult Authority, in its administration of the indeterminate sentence law, has or may have such prior convictions within its contemplation.

We are of the opinion that an inquiry into the constitutionality of petitioner's prior convictions is not required in the circumstances of the instant case. As noted above, the convictions here at issue do not affect petitioner's penal status in the sense that they activate statutory machinery operating to directly limit his consideration for term-fixing or parole. ³ Rather, at this late date in petitioner's period of confinement, the prior convictions simply form a part of the comprehensive body of material on the basis of which the Adult Authority's 'entire discretion' as to term-fixing and parole is to be exercised. (See and compare Roberts v. Duffy, 167 Cal. 629, 640, 140 P. 260.) In these circumstances it is appropriate to rely on the Adult Authority's presumed knowledge of recent decisions of this court and the United States Supreme Court relative to the right to counsel, and to anticipate that suitable consideration will be afforded prior convictions sustained before those decisions were rendered.

It is of course clear that this court may, in appropriate cases, require that the Adult Authority afford proper consideration to applications for term-fixing or parole. Thus, in Neal v. State of California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, we determined that the provisions of section...