McVICKERS v. << (1945)

In an information filed in Marin County, California, on January 6, 1938, petitioner was charged in three counts with violations of the narcotic laws of California, Stats.1929, ch. 216, p. 380. The information further charged that on June 24, 1924, defendant had been convicted in Utah of the crime of ‘Grand Larceny’ and had served a term of imprisonment therefor in the state prison; that on October 22, 1925, defendant had been convicted in Nevada of the crime of burglary, first degree, and had served a term of imprisonment therefor in the state prison; and that on April 5, 1928, he had been convicted in the United States District Court for the Northern District of California, in nine counts of violation of section 218 of the United States Criminal Code, 18 U.S.C.A. § 347, and served a term of imprisonment therefor in a federal prison. Defendant entered his plea of not guilty to each count and admitted the prior convictions as alleged in the information. Later, he withdrew his plea of not guilty to count three and entered his plea of guilty thereto. He went to trial before the court without a jury, on counts one and two, and the court found him guilty on both counts. He was adjudged an habitual criminal and sentenced to be imprisoned at San Quentin for the term prescribed by law. He thereafter moved to modify or vacate said judgment on the ground that two of the prior convictions did not constitute prior felony convictions within the meaning of sections 644 and 668 of the Penal Code, in that the conviction in Utah was for larceny of property of a value less than $200, and that offenses under section 218 of the United States Criminal Code, 18 U.S.C.A. § 347, were not enumerated in sections 644 and 668, supra. His motion having been denied he appealed, People v. McVicker, 37 Cal.App.2d 470, 99 P.2d 1110, but the appellate court held that these questions could not be reviewed upon their merits in that proceeding and that the proper course for appellant to pursue was to await the arrival of the time when he would be entitled to release from confinement for the primary offenses, and then test the legality of his further confinement on habeas corpus.

Petitioner has pursued the course suggested by the appellate court, and it is here conceded that if he was improperly adjudicated an habitual criminal he is entitled to his release. In support of the petition filed herein we have before us the information filed in the state of Utah which charges that defendant (with another), on May 27, 1924, ‘wilfully, unlawfully and feloniously took, stole and drove away a certain Light Six Studebaker automobile * * * belonging to E. Rosenberg, the same having a value in excess of $50.00.’

In 1924 our Penal Code, sec. 487, which now provides that the theft of an automobile is grand theft, did not so provide. In order to constitute grand larceny under said section as it then read it was necessary that the property stolen have a value in excess of $200, or be taken from the person of another or consist of the specific kinds of property enumerated. The value of the automobile alleged to have been taken by petitioner does not appear, nor was it shown at the trial on the primary charges. Also, in 1924, section 644 of the Penal Code did not include grand larceny among the felonies enumerated.

In People v. Hayes, 3 Cal.App.2d 59, 63, 39 P.2d 213, 214, where one of the priors charged against Hayes in the information was larceny committed in Illinois, the court said:

‘Larceny in Illinois is grand larceny if the property stolen exceeds the value of $15, or if the property is stolen from the person of another. But the California law is different in this, that in California the value test is that the property, in order to make the offense grand theft, must be of a value to exceed $200. Penal Code, § 487. The mere proof that a person in the state of Illinois was convicted of larceny is not proof that the value of the property stolen was more than $200, nor is it proof that there was any larceny by taking from the person of another. Therefore in this case there is no evidence that there was any conviction of the defendant of the crime of grand theft committed in Illinois, so as to bring the present case within the provisions of sections 668 and 644 of the Penal Code of California.’

And in People v. McChesney, 39 Cal.App.2d 36, 41, 102 P.2d 455, 458, the court said regarding the charge of a prior conviction in Louisiana of ‘Breaking and entering a building in the night time,’ that such charge is not comparable with section 459 of our Penal Code, which provides that the entry must be ‘with intent to commit grand or petit larceny or any felony’; that ‘Under language set forth in the Louisiana conviction, we must assume that defendant was convicted of the least degree of offense enumerated in the Louisiana statute, that is, an unidentified misdemeanor.’ And it was held that the Louisiana conviction did not constitute a ‘prior’ under section 644 of our Penal Code.

A recent opinion of the Attorney General of this state, N.S. #5371, reported in Vol. 3 of Opinions of Attorney General, p. 198, is to the same effect. There one of the priors charged was larceny in 1925 of an automobile of the value of over $50, and there was no evidence that the automobile was of the value of more than $200. The prior conviction was held not to be one within the provisions of sections 644 and 668 of the Penal Code, citing People v. Hayes, and People v. McChesney, supra.

The record in the Marin County proceeding which has been introduced in evidence in the proceeding before us reveals that there was no showing in the trial court as to the value of the automobile stolen in Utah, and we are therefore of the opinion that the conviction in that state was improperly considered as a prior conviction upon which to base an adjudication that petitioner was an habitual criminal.

As for petitioner's contention that his conviction of violations of section 218 of the United States Criminal Code, 18 U.S.C.A. § 347, was improperly considered as a prior, we have been furnished with a copy of the indictment in that case, and a copy of the judgment. They show that defendant was convicted of forging and uttering, on different dates in January, 1928, United States Postal Money Orders. Respondent asserts, without furnishing any authorities on the subject, that the crimes constituted forgery. But in 1928, when the foregoing offenses were committed, forgery was not included among the offenses enumerated in section 644 of our Penal Code, though it was so enumerated in 1938. Therefore, upon the authority of People v. McConnell, 20 Cal.App.2d 196, 66 P.2d 720, the conviction in the federal court was improperly considered as a prior, in adjudging petitioner an habitual criminal. However, the decision in this case need not rest upon that basis alone, since we are satisfied that the forging of a United States Postal Money Order is not, and was not, either in 1928 or in 1938, a violation of section 470 of the California Penal Code, defining forgery. While the latter section goes to considerable length in enumerating the instruments the forgery of which constitutes the offense defined, neither United States Post Money Orders nor any other instruments issued by the United States or under its authority are included. And in view of the scope of that which is included, it may fairly be assumed that the legislature intended to and did enumerate all instruments whose falsification it intended should constitute forgery.

Section 218 of the United States Criminal Code is found in a chapter entitled ‘Offenses against the Postal Service,’ and the section itself is headed ‘Counterfeiting money orders.’ Our California Penal Code does not purport to define any crimes against the postal service, and the only counterfeiting section in it is section 477 which applies only to the counterfeiting of coin, bullion, etc. Furthermore, the crime there defined is not one enumerated in section 644 of the Penal Code.

While the exact question before us apparently has not been before the courts of this state previously, a similar one was raised in People v. Fury, 279 N.Y. 433, 18 N.E.2d 650, where the conviction in a federal court of the uttering of a counterfeited federal reserve bank note was relied upon as a prior offense justifying an increased penalty after conviction in the state court of the crime of burglary. The court considered the state statutes, one of which made the uttering of certain instruments a felony. Among those instruments were enumerated ‘a certificate, bond, paper writing, or other public security, issued or purporting to have been issued by or under the authority of this state, or of the United States * * *.’ Also: ‘A * * * bank note * * * or other obligation or evidence of debt, issued or purporting to be issued by any bank, banking association or body corporate existing under the laws of this state, or of the United States * * *.’ Penal Law, § 884. For that reason the court held that the uttering of a Federal Reserve bank note constituted a violation of the penal laws of the state. But the inference from that case is that had there been no such state statute, the conviction would not have been considered as a prior justifying an increased penalty. And the decision in that case was subsequently distinguished on that basis, in People ex rel. Marks v. Brophy, 293 N.Y. 469, 58 N.E.2d 497. In that case Marks, while on parole from the state prison, was declared delinquent because of his conviction, after his parole, of the crime of using the United States mails in a scheme to defraud, and a conspiracy to so use the mails. In holding that these federal convictions could not deprive Marks of his credits because they were not for felonies under New York law, the court said, 58 N.E.2d at page 500:

‘The State says, however, and the lower courts have held in this case, that People v. Fury, 279 N.Y. 433, 18 N.E.2d 650, is, somehow, authority to the contrary. We do not agree. People v. Fury, unlike People v. Gutterson, supra [244 N.Y. 243, 155 N.E. 113], involved a prior conviction where the same offense (uttering a counterfeit Federal Reserve bank note) was a felony both under the Federal Criminal Code and under our Penal Law. Fury was held to be a second offender not on the basis of a previous conviction of a crime described only in the laws of another jurisdiction but because he had been previously convicted in another jurisdiction of a crime declared to be a felony in our own statutes.’ (Italics added.)

In People v. Gutterson, 244 N.Y. 243, 155 N.E. 113, above mentioned, in fixing punishment the trial court considered a prior federal conviction for ‘using the mail to defraud.’ In reversing the judgment the court said, 155 N.E. at page 115:

‘Here the offense is one which is cognizable only by the laws of the United States. While the citizens and residents of this state are subject to those laws, the Legislature of this state has not defined the crime or fixed penalty for its commission. * * * It rests with the Legislature to fix a standard for the crimes to which upon proof of prior conviction section 2189 of the Penal Law has attached new consequences. The Legislature has fixed a standard which can reasonably include only crimes which are punishable under the law of this state. Doubtless other reasonable standards might be used which would include the crime of using the mails to defraud. The Legislature has not seen fit to apply such standards.’

In People v. Knox, 223 App.Div. 123, 227 N.Y.S. 417, in refusing to affirm a judgment including a prior, the court held that where the information and proof in a prosecution for robbery merely showed that the defendant had been formerly convicted of a violation of the Federal Law, i. e., of car burglary under the Carlin Act, and did not establish facts sufficient to show that the former conviction was for an offense which would be a felony under the laws of the state of New York if committed in that state, the trial court's sentence as a second offender, under sec. 1943 as amended, was unauthorized and erroneous.

In People v. Lohr, 28 Cal.App.2d 397, 82 P.2d 615, it was held that in order to justify the trial court in adjudging the defendant an habitual criminal, it was necessary for the prosecution to charge and prove that the prior convictions were among those set forth in section 644 of the Penal Code; and where it merely appeared that defendant was convicted of violations of the Dyer Act, 18 U.S.C.A. § 408, in transporting a vehicle in interstate commerce with knowledge that the same was stolen, which offense is substantially the same as the offense denounced in section 503 of the Vehicle Code of this state, St.1935, p. 174, but is not one of those enumerated in said section 644, the court was not justified in adjudging him to be an habitual criminal. Also see People v. Rios, 175 Misc. 794, 24 N.Y.S.2d 411; Garcia v. State, 140 Tex.Cr.R. 340, 145 S.W.2d 180; People v. McGee, 24 Cal.App.2d 391, 75 P.2d 533.

It is conceded by respondent that with credits earned, granted and not forfeited, petitioner has already served in excess of the maximum sentence that could be imposed upon him for the primary offense of which he stands convicted; and since we are satisfied that the offense of which he was convicted in Utah and the federal offenses above referred to did not constitute crimes within section 644 of the Penal Code, he is now entitled to his discharge; and it is so ordered.

ADAMS, Presiding Justice.

PEEK and THOMPSON, JJ., concur.