CHAPMAN v. << (1954)

This is a petition for writ of habeas corpus. Upon the filing thereof this court issued an order to show cause why the writ should not issue.

Petitioner was tried in the Superior Court of Tuolumne County and convicted of the crimes of robbery while armed with a deadly weapon, and assault by means of force likely to produce great bodily injury. Judgment was pronounced and petitioner was sentenced to state prison on both of the aforesaid counts, the sentences to run consecutively.

From the foregoing judgments of conviction petitioner appealed, resulting in an affirmance thereof by the District Court of Appeal of the Third District. People v. Chapman, 91 Cal.App.2d 854, 206 P.2d 4. Subsequent thereto, petitioner sought a writ of error coram nobis in the Superior Court of Tuolumne County, in September of 1949, which petition was denied and an appeal was taken to the District Court of Appeal, Third Appellate District. This appeal was dismissed. People v. Chapman, 96 Cal.App.2d 668, 216 P.2d 112. Petitioner also sought a writ of habeas corpus in the Superior Court of Los Angeles County which was denied July 14, 1953. It is urged, however, by petitioner, that the grounds for the present petition are raised here for the first time and accordingly, we have examined them with great care.

The contention is here made that in the foregoing information filed against petitioner in the Superior Court of Tuolumne County the two counts upon which he was convicted both arose from one offense, to-wit, the talking of approximately $75 from one Jim Gulley by the use of force and violence upon and against the victim of said robbery.

It is set forth that count I alleged in part, ‘Robbery of the First Degree, In that, on or about the 2nd day of April, 1948, * * *’, petitioner, ‘while armed with a dangerous and deadly weapon, to-wit: a revolver, did wilfully, unlawfully, feloneiously, and forcibly, take from the person and immediate presence of one Jim Gulley, personal property, to-wit: Seventy-five ($75.00) dollars or threabouts in money, * * * against his will, by means of force and fear, * * *.’

It is further charged in the petition that count III of the information alleged, ‘Assault by Means of Force Likely to Produce Great Bodily Injury in that, on or about the 2nd day of April, 1948, * * *’, petitioner herein, ‘did wilfully, unlawfully and feloniously assault one Jim Gulley, a human being, by means of force likely to produce great bodily injury.’

The petition further averred that following petitioner's conviction upon both of the foregoing counts, the court pronounced judgment as aforesaid, sentencing him to two consecutive terms of imprisonment in the state penitentiary.

Petitioner earnestly insists that the verdict, judgment and commitment were erroneous insofar as count III of the information is concerned, and that his present confinement and imprisonment thereunder are illegal in that said count III arose out of the same act as set forth in count I.

By his return to the order to show cause, respondent Superintendent of the Medical Facility of the Department of Corrections, Terminal Island, California, interposed a demurrer to the petition on the ground that the latter does not state facts entitling petitioner to a writ of habeas corpus in that said petition shows on its face that the petitioner is not entitled to release and that he is not illegally imprisoned or restrained of his liberty by respondent.

By way of answer to the petition, respondent set forth the foregoing convictions of petitioner in Tuolumne County and the appeal therefrom. He further alleged that subsequent to the convictions in Tuolumne County, petitioner was also convicted of the crime of burglary in the Superior Court of Alameda County, which judgment was affirmed on appeal. People v. Chapman, 93 Cal.App.2d 365, 209 P.2d 121.

The sole question presented for determination is whether a writ of habeas corpus is available to challenge an allegedly excessive sentence until the valid portion of the sentence has expired. Respondent insists that since petitioner, as a twice previously convicted felon and being armed with a deadly weapon at the time of the commission of the robbery charged in count I of the information now before us, must serve a minimum of ten years and will not be eligible for release for a number of years hereafter, Penal Code, § 3024, Subd. (b), habeas corpus is not available.

Respondent insists that it is established practice in this state not to consider on habeas corpus any question of excess of sentence until the expiration of the time for which the prisoner may be lawfully confined. In support of his argument regarding the claimed prevailing practice in this state, respondent relies strongly on the case of In re Rosencrantz, 211 Cal. 749, 752, 297 P. 15, 17, wherein the supreme court said, quoting from In re Morck, 180 Cal. 384, 181 P. 657, ‘It is the established practice of the Supreme Court not to consider any question of excess of sentence until the expiration of the time for which the prisoner may be lawfully confined. * * *’. See, also, In re McInturff, 37 Cal.2d 876, 880, 881, 236 P.2d 574; In re Morck, supra; In re Glancy, 139 Cal.App. 766, 767, 34 P.2d 834; In re Spaulding, 8 Cal.App.2d 497, 498, 48 P.2d 133; In re Stein, 4 Cal.App.2d 267, 40 P.2d 934; In re Buchanan, 4 Cal.App.2d 269, 40 P.2d 935. In the instant proceeding, however, petitioner does not seek his immediate release, but asks for an adjudication by this court that the second of his consecutive sentences is illegal in that the one act of inflicting force with the deadly weapon cannot be presented both as assault by means likely to produce great bodily injury and availed of by the People as the force necessary to constitute the crime of robbery, for the reason, as said by the Supreme Court in People v. Logan, 41 Cal.2d 279, 260 P.2d 20, 26, “co-operative acts constituting but one offense when committed by the same person at the same time, when combined, charge but one crime and but one punishment can be inflicted.' (citing cases).'

There has been filed in this court a stipulation entered into by respective counsel that certain excerpts taken from the reporter's transcript of petitioner's trial in Tuolumne County, constitute the portion of the testimony of the complaining witness therein, Jim Gulley, and the codefendant, Donald Larios, concerning the charges contained in the aforesaid information as filed against petitioner.

A review of that document reflects that petitioner and the victim drove out of Jamestown, in Tuolumne County, towards Oakdale. Petitioner was driving. The codefendant, Larios, was following in another car. The victim testified he ‘kept telling him (petitioner) that I could drive. I told him to stop pretty soon, and he said he would when he found a place wide enough to stop, so he stopped there.’ Larios also stopped the vehicle he was driving, petitioner alighted from the vehicle he was driving, went back and talked with the codefendant Larios. As to what then ensued, the victim testified: ‘I started to get in the driver's seal, and he came back and said ‘get on the other side of the car.’ I thought he was going to drive on further. He stopped in front of the car and showed me a gun and said, ‘This is a hold-up.”

The victim further testified that petitioner then ordered him to, ‘Get around the other side of the car and put your hands up’. The petitioner then demanded the victim's wallet and ‘the change in my pocket and lay it on the ground’. The victim handed his wallet to petitioner and taking the loose change from his pocket placed it on the ground. According to the victim's testimony, after placing his money on the ground, ‘* * * I got up and started to run towards Rosasco's house, and one of them overtook me and started clubbing me on the head and knocked me down.’

The victim testified the petitioner inquired of him why he ran, twice saying, ‘I ought to blow your guts out’. The victim was then compelled to remove his boots, whereupon petitioner and the codefendant Larios departed.

The foregoing testimony of the victim was in substance corroborated by the codefendant Larios, except that the latter testified that when the victim started to run he (Larios) pursued him, ‘* * * just tackled him and got him down’. That petitioner came up and started ‘hitting Jim (the victim)’. That petitioner said to the victim, ‘where is the rest of your money, and Jim said he didn't have any more. He (petitioner) said ‘Quit lying’ and Jim said he wasn't lying. He told him to lay over on his stomach, and then he said ‘I ought to shoot your guts out. Where is your money?’ Jim said he didn't have any, so then he started walking across the highway.' That petitioner then went back to the car and drove away.

From the foregoing description of the criminal transaction as disclosed by the victim and the codefendant Larios, it seems manifest that the striking of the victim, either with the weapon or petitioner's fists, the taking of the victim's money and consummation of the robbery, constituted a single, indivisible transaction. Under such circumstances, but one offense was committed, and it cannot be carved into two offenses in order to inflict a double punishment. People v. Logan, supra, 41 Cal.2d 279, 260 P.2d 20.

And we are further persuaded that under the facts here present, petitioner, in a habeas corpus proceeding, is entitled to a judicial decision correctly declaring his rights when the constituted authority determines his sentence and as to when he may be eligible for parole, in accordance with the declaration of his rights as set forth in this opinion. As was said in In re McVickers, 29 Cal.2d 264, 281, 176 P.2d 40, 51, a prisoner is ‘entitled to be accorded the benefits as well as the penalties of the law * * *.’

The importance to petitioner of an adjudication similar to that found in In re McVickers, supra; In re Seeley, 29 Cal.2d 294, 176 P.2d 24, and In re Lamey, 85 Cal.App.2d 284, 193 P.2d 66, is manifest from a consideration of various Penal Code sections, including section 3021, which provides that when a prisoner has imposed upon him two or more consecutive sentences the board may determine and redetermine after the expiration of six months of his first sentence, what length of time he shall serve on all such consecutive sentences; section 3043 which provides that no prisoner who has had imposed upon him two or more consecutive sentences may be paroled until he has served at least two calendar years of the aggregate of such consecutive sentences; and section 3049 which provides, in part, that no prisoner may be paroled until he has served the minimum term of imprisonment provided by law for the offense of which he was convicted.

For the reasons above stated, it appears that petitioner's conviction under Count III of the information, and the sentence imposed thereunder, was without authority of law, and that the Adult Authority should consider and act on his case without regard to the penalty imposed upon Count III of the information.

However, since petitioner is legally imprisoned because of the judgment pronounced under Count I of the information, he is not presently entitled to discharge or to release on parole.

The demurrer of respondent is overruled; the order to show cause of heretofore issued is discharged, and the petition for a writ of habeas corpus is denied.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.