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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack STANPHILL, Defendant and Appellant.*

Cr. 3328.

Decided: August 15, 1958

Edward Nelson, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

Convicted of first degree robbery, committed while armed with a deadly weapon, and of conspiracy to commit robbery, with four prior convictions (one in Oklahoma in 1947 and three in California in 1951),1 defendant was found by the trial court to be ‘a habitual criminal.’ Defendant questions this finding.

It is true that the indictment charged the Oklahoma conviction and the defendant admitted ‘as true the prior conviction of Felony of the date of September 4, 1947, as charged * * *.’ However, it does not appear from the charge itself whether he was convicted of a crime which is specified by section 644 as one which is used as a basis for determining that a person is ‘a habitual criminal’; especially in view of the fact that the Oklahoma statute includes in its definition of burglary the doing of certain acts which would not constitute burglary in California under our statutes.

For example, Oklahoma defines burglary as breaking into and entering a dwelling house in which there is at the time some human being ‘with intent to commit some crime therein’; burglary in the second degree as doing this in the day time, or in the night time, breaking an inner door or part of the house after entering lawfully or through an aperture not made by the defendant ‘with intent to commit any crime’ or breaking and entering into certain other buildings ‘with intent to steal therein or to commit any felony.’ 21 Okl.St.Ann. §§ 1431, 1432, 1433, 1434, 1435. Accordingly, such an entry for the purpose of committing a mere misdemeanor, any misdemeanor, would amount to burglary in Oklahoma; whereas, under California law, ‘petit larceny’ is the only misdemeanor included in such a category. Pen.Code, § 459.

Accordingly, proof of the nature of this particular conviction (for example, whether or not it involved an entry for the purpose of committing a misdemeanor other than petit larceny) was necessary as a predicate to determination that defendant is a habitual criminal. The record indicates that such proof was tendered in this case by means of certain documents which the district attorney presented to the trial judge. They consisted of certified photostatic copies of informations and commitment papers, guilty pleas of the defendant to those charges, and his commitment to the Oklahoma state penitentiary; also, a letter from the county attorney of Tulsa county, Oklahoma, to the district attorney of San Francisco outlining the details of the Oklahoma crimes. From these documents it would appear that each of the Oklahoma burglaries would have been a burglary under section 459 if committed in California. The entry in each case was for the purpose of stealing ‘certain personal property of value.’ That, at least, was a charge of an entry for the purpose of committing petit larceny.

However, these documents were not authenticated in the manner prescribed by section 1905, Code of Civil Procedure, nor by production of the originals as sanctioned by People v. Wilson, 100 Cal.App. 397, 400, 280 P. 137, nor by authenticated copies of the judgments and testimony identifying the defendant (People v. Wilson, 103 Cal.App. 420, 423–424, 284 P. 988), nor in the manner provided by section 969, subdivision b, Penal Code. The respondent argues that section 969, subdivision b, has been satisfied, because the documents include a copy of the warden's receipt. The receipt is not a certification.

Moreover, the documents were merely presented to the trial judge by the district attorney at the time of sentencing. There is no indication in the record that defendant was at any time given an opportunity to question the correctness or legal competence of the authentication of the documents mentioned. Such an opportunity should have been afforded him.

Respondent says that because defendant admitted the Oklahoma priors as charged, there was no place during the trial where the admission of these documents in evidence would have been pertinent; indeed, their admission would have been prejudicially erroneous, citing Penal Code, sections 1025 and 1093.2 Accordingly, says respondent, ‘what else could the trial judge do but accept the documents as he did in this case, inspect them to make sure the defendant was convicted of a crime which if committed in California would have been burglary under the laws of * * * California.’ That is not the production of evidence nor is it confrontation of the defendant with the purported ‘evidence’ tendered, upon an issue of pivotal importance in the case. The habitual criminal, under the circumstances of this case, would be sentenced to imprisonment for life. Pen.Code, § 644. People v. Morton, 41 Cal.2d 536, 541–545, 261 P.2d 523, demonstrates that here we are not dealing with some trivial, inconsequential detail of procedure; instead, it is a matter of such great import, a formal adjudication is required.

In such a case the established procedure is to reverse the judgment in part and remand for retrial of issues limited to those which pertain to the question whether or not defendant is a habitual criminal. People v. Taylor, 155 Cal.App.2d 26, 317 P.2d 167; hearing by Supreme Court denied.

We note in passing that if the retrial results in a determination that defendant is a habitual criminal and a life sentence is imposed, all other terms should run concurrently with the life term, not consecutively as heretofore adjudged herein. Pen.Code, § 669; People v. Tucker, 127 Cal.App.2d 436, 437, 273 P.2d 934.

The part of the judgment adjudging defendant a habitual criminal and imposing sentence is reversed and the cause is remanded with directions to resentence defendant after the conclusion of the limited new trial on the issue of the challenged prior convictions.


1.  The three prior California priors were tried together. Only one qualifies as a prior conviction ‘upon charges separately brought and tried’ under Penal Code, section 644.

2.  Such evidence is not to be presented to the jury but only to the judge at or prior to the time of fixing sentence.

FRED B. WOOD, Justice.

PETERS, P. J., and BRAY, J., concur.

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