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District Court of Appeal, Third District, California.


Cr. 1276.

Decided: January 30, 1934

Alton H. Vaile, in pro. per. U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People.

After the opinion in this matter had been filed, certain facts were called to our attention which necessitated a re–examination of the question presented.

The judgment under which this defendant was committed was entered October 14, 1930. In the information charging the various offenses of which appellant was convicted and sentenced he was also charged with having been previously convicted of three separate felonies, namely, burglary, assault with intent to commit murder, and jail escape, conviction of which upon his arraignment he admitted. Thereafter on June 9, 1933, an order was issued out of the superior court of Yolo county reciting the judgment and conviction of defendant, but that the court had omitted to find said defendant an habitual criminal without right of parole and directed that he be returned from the state prison at Folsom for further proceedings. Subsequently and on June 12, 1933, the defendant appeared in court and after arraignment for judgment the court found defendant to be an habitual criminal and sentenced him to imprisonment for life in the state prison without right of parole. It is from this latter judgment and finding that defendant now appeals.

The law as existing in 1930, when the conviction of defendant was had, did not require any pleading or proof that any of the three felonies charged had been attended with imprisonment and it was not necessary that the felonies belonging to any particular class or group. Section 644, Penal Code (St. 1927, p. 1066), which then applied, read in part as follows: “* * * Every person convicted in this state of any felony who shall have been previously three times convicted, either in this state or elsewhere, of any felony, shall be punished by imprisonment in the state prison for not less than life and shall not be eligible to parole. * * *”

In 1931 this section was amended (St. 1931, p. 1052), but with those amendments we are not concerned, as the rights of this appellant are measured by the statute in force at the time of plea and judgment.

The judgment of the trial court that appellant is an habitual criminal deprived of the right of parole is therefore affirmed.