PEOPLE v. STEIN (1947)

Defendants were charged by information with robbery and kidnapping in count one, and with the crime of robbery in counts two and three; prior convictions also were alleged. Following a plea of guilty defendants were adjudged habitual criminals and sentenced accordingly. Defendants ‘appeal from the judgment adjudging each of them as habitual criminals.’

It is contended, ‘That the court erred in finding that they were habitual criminals, since one of the counts on which said Bernard Stein was convicted was breaking and entering, a high misdemeanor in the State of New Jersey, and one of the counts against Morris Leder was second degree burglary.

‘The defendants pleaded guilty to the charge of robbery. Defendant Stein also admitted that he had been convicted of breaking and entering in the Circuit Court of the State of New Jersey, Hudson County, on or about April 19, 1928, a matter of twenty years before, and also that he had been convicted of robbery.

‘The crime of ‘breaking and entering’ as defined by the New Jersey law is a high misdemeanor. Besides, it did not come within the Statutory requirement for habitual criminals, which only makes persons convicted of ‘burglary of the first degree, or burglary with explosives' within the definition of habitual criminals as described by Penal Code Section 644.

‘The same is true with reference to Morris Leder. Morris Leder admitted the crime of robbery in Arizona in 1932 and second degree burglary in the Superior Court of Los Angeles in 1936.

‘Since the burglary that is involved in Section 644 of the Penal Code is only burglary of the first degree, Statute of 1945, Chapter 934, Section 1, the habitual criminal statute does not apply to this defendant and appellant either.

‘As a matter of fact, the information in this case only alleges that the defendant was convicted of the crime of burglary, a felony. The degree is not stated in the information, but the presumption is that it is the lowest degree, and Sections 1096–1097 of the Penal Code would apply, and the failure to allege first degree burglary would therefore fail to allege that the offense comes within the category of Section 644 of the Penal Code.’

The foregoing, with the exception of one paragraph which is immaterial, constitutes appellants' opening brief.

Defendants pleaded guilty and admitted the prior convictions on October 10, 1946. On December 11, 1946, a motion was made to vacate the ‘finding and judgment that defendants are habitual criminals.’ On January 19, 1947, said motion was denied and on January 20, 1947, defendants appealed. There was no appeal from the original judgment.

A review of the record reveals that there is no merit to the appeal. See People v. Simms, 41 Cal.App.2d 466, 107 P.2d 86.

The judgment is affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.