IN RE: William Joseph FINLEY (1967)

The record before us reveals petitioner's following convictions:

1. December 16, 1932: State of Washington, sentence after guilty plea, offenses: (1) taking an automobile without permission of the owner, and (2) ‘second degree burglary’; sentenced to Washington state reformatory.

2. September 1, 1938: San Francisco, California, sentenced after guilty plea, offense: robbery first degree; sentenced to state prison.

3. May 10, 1946: Los Angeles, California, sentence upon jury convictions, offense: robbery first degree with two ‘priors' (admitted): (1) 1932 Washington burglary, and (2) 1938 San Francisco robbery: adjudicated an habitual criminal under Penal Code section 644, subdivision (a): sentenced to state prison for life.

4. December 14, 1964: San Diego, California, sentence upon jury conviction, offenses: (1) robbery first degree with two prior convictions (admitted), to wit: the San Francisco and Los Angeles convictions stated above; (2) assault with a deadly weapon, with the same two priors. (No adjudication of habitual criminality—see infra.)

Use of the 1932 Washington conviction for burglary as one of two prior convictions upon which an adjudication of habitual criminality is based in the 1946 Los Angeles sentence is the principal target of this application for habeas corpus. It is made upon three grounds: (1) that the Washington proceedings were juvenile court proceedings;¹ (2) that petitioner was not there advised of his right to counsel and did not waive counsel; (3) that the Washington ‘burglary’ of which petitioner was convicted was not within the purview of Penal Code section 644.

The Washington record before us is incomplete. It consists only of the ‘Judgement, Sentence, and Commitment’ and a fingerprint record. We have not seen the accusatory pleading, any other court records, nor any prison record. The Attorney General states: ‘The records of the State of Washington are no longer available, due to the passage of time, to show whether or not petitioner was advised of his rights to counsel or whether he intelliently waived said rights, although the judgment indicates that petitioner was without counsel at the time he entered a plea of guilty to the crimes charged.’ (Actually, the judgment is silent with respect to his appearance without counsel at the time of plea. It shows affirmatively he was without counsel at the time of sentence.)

We find petitioner's first contention without merit. His second and third contentions (which we shall discuss inversely) have conceivable provability but will necessitate a remand for further hearing.

RE WASHINGTON CONVICTION AS A JUVENILE COURT PROCEEDING.

The record establishes the Washington conviction was not a juvenile commitment under the then existing Washington Juvenile Court Law. That law (Rem.Rev.Stat. (1932) sec. 1987–12) gave to the juvenile court discretion to order minors charged with crime, including those under 18 (see footnote 1), ‘turned over to the proper officers for trial under the provisions of the criminal code.’ In such event, the matter became an ordinary criminal case (State v. Hager, 157 Wash. 664, 290 P. 230) in which the minor was prosecuted and sentenced under the criminal law. (State ex rel. Sowders v. Superior Court, 105 Wash. 684, 179 P. 79.) It appears petitioner was so prosecuted in Washington Although commitment there was to the Washington State Reformatory, Washington statutes make it clear that that was a penal institution and not a training school for youthful offenders not under sentence of imprisonment. (Rem.Rev.Stat. (1932) secs. 2195, 10280 to 10280–16: id., secs. 1980, 1986, 1987–8, 1987–10, 2276, 2277, 10299 to 10319.) (See People v. Stein, 31 Cal.2d 630, 636, 191 P.2d 409.) The argument of petitioner that he was only a juvenile court offender cannot be sustained.

RE THE VALIDITY OF THE ADJUDICATION OF HABITUAL CRIMINALITY.

As stated, petitioner challenges the sufficiency of the proof in the Los Angeles proceeding that the State of Washington ‘burglary in the second degree’ was the type of crime covered by Penal Code section 644. (Note that he does not contend he did not commit a burglary which would be so defined; only that such was not proved.)

Subdivision (a) of Penal Code section 644, in pertinent part, provided in 1946 that every person convicted of a felony who twice previously had been separately tried, convicted and had served separate prison terms for certain enumerated crimes ‘shall be adjudged a habitual criminal and shall be punished by imprisonment in the state prison for life.

It is well settled in California that where, in the determination of habitual criminality, a prior conviction in a sister state is involved the court does not look to the denomination given that crime in said state. The crime will only be classified as within Penal Code section 644 if, as stated in In re Wolfson, 30 Cal.2d 20, at page 23, 180 P.2d 326, at page 328, ‘the minimum adjudicated elements of the foreign offense meet the minimum elements (as defined by the California statute in effect on the date of the commission of the foreign crime) of a California offense which was enumerated in section 644 on the date of the commission of the primary (California) crime.’ (See also People v. Morton, 41 Cal.2d 536, 539, 261 P.2d 523.)

The date of the primary crime in the Los Angeles conviction was January 14, 1946. Burglary then and now was enumerated as a Penal Code section 644, subdivision (a), habitual-criminal-type ‘prior.’ Petitioner was sentenced in the State of Washington for ‘second degree burglary.’ California Penal Code section 459 as then in existence (Stats. 1913, ch. 144, p. 228, sec. 1) differed from the Washington statutes defining burglary. (Rem.Rev.Stat. (1932) secs. 2578, 2579—enacted in 1909.) The difference was in the matter of intent. California required an intent ‘to commit grand or petit larceny or any felony’ (it still does); Washington required merely ‘intent to commit some crime.’ (See In re Pearson, 30 Cal.2d 871, 875–876, 186 P.2d 401.) Thus, the Washington crime petitioner committed might, or might not, have been of a type within the purview of Penal Code section 644, subdivision (a). Petitioner admitted the Washington ‘prior’ at the Los Angeles proceedings. The allegations of the Los Angeles accusatory pleading do not show whether or not the Washington conviction was for a crime substantially equivalent to the Penal Code section 644, subdivision (a), prescription of burglary. Petitioner's admission conceded no more than the fact of the prior conviction and the truth of the specific allegations concerning the ‘prior’ contained in the accusatory pleadings, i. e., accused admits only the minimum crime so alleged. (In re Tartar, 52 Cal.2d 250, 256, 339 P.2d 553; In re McVickers (1946) 29 Cal.2d 264, 278, 176 P.2d 40.) The prosecution in the Los Angeles trial, apparently action under the belief that petitioner's admission of the ‘prior’ was sufficient, did not supply the missing proof. Petitioner did not appeal.²

A charge that a defendant is an habitual criminal is serious. It carries with it a life sentence. (Pen.Code, sec. 644, subdivision (a).) If denied the People must prove prior adjudications beyond a reasonable doubt. (People v. Morton, supra, 41 Cal.2d 536, 539, 261 P.2d 523.) Here, since petitioner's admission of the Washington ‘prior’ did not extend to an admission of an intent to commit grand or petit theft or a felony, it was incumbent upon the prosecution in the Los Angeles proceedings to prove that. It did not do so. That error in the record could have been raised on appeal. (Cf. In re Seeley (1946) 29 Cal.2d 294, 297, 176 P.2d 24, 26.) Petitioner did not elect so to attack the adjudication. He elected to wait 21 years and then raise the question by this application for a writ of habeas corpus. ‘It is the general rule that the writ may not be used to correct error nor be employed where there is a remedy by appeal or other direct attack. But in exceptional cases it may be issued even though other remedies might have been available.’ (In re Seeley, supra, p. 296, 176 P.2d p. 26.) The Seeley case is one of four California Supreme Court cases, preceded by In re McVickers, supra, 29 Cal.2d 264, 176 P.2d 40, and succeeded by In re Wolfson, supra, 30 Cal.2d 20, 180 P.2d 326, and In re Pearson, supra, 30 Cal.2d 871, 189 P.2d 401, where the court, splitting four to three, in 1946 and 1947, announced the rule then new in California making habeas corpus available to challenge error in the adjudication of habitual criminality.

Does the failure of the prosecution on the face of the record in the Los Angeles proceedings to prove habitual criminality terminate the matter and necessitate our order finally vacating and setting aside the adjudication? If so, then the law grants a premium in favor of the defendant who might have raised the matter on appeal. Attack by direct appeal would have resulted, under the circumstances presented here, merely in the granting of a new trial (which could have been held probably in 1947) to determine the issue of the gravity of the Washington offense. As we read a later California Supreme Court decision, People v. Morton, supra, 41 Cal.2d 536, 261 P.2d 523, petitioner does not get that bonus.

The opinion in People v. Morton, supra, was written in an ‘appeal’ situation. However, it is also, we believe, definitive of the rights of a petitioner challenging an habitual criminal adjudication by habeas corpus. In Morton defendant, having denied the charged prior conviction, was nevertheless adjudicated an habitual criminal. The prior conviction upon which habitual criminality was based was in a sister state. The Supreme Court reversed the habitual-criminal determination. The question then decided was: Should such reversal finally terminate the adjudication or call for a retrial? The court analyzed earlier California case law, found it conflicting. Cases requiring retrial on all issues were disapproved. Cases granting a final setting aside of the adjudication of criminality were approved where the evidence at the original trial had demonstrated that the foreign conviction was as a matter of law not for one of the crimes enumerated by Penal Code section 644, subdivision (a). It was held that in all other cases there should be a retrial to determine the fact of whether or not an adjudication of habitual criminality could properly be made. In Morton the defendant had argued (as recited in the opinion on p. 544, 261 P. 2d 523), with the McVickers and Seeley cases cited as authority, that had he ‘not appealed but waited instead for judgment to become final and then petitioned for habeas corpus, that part of the judgment adjudging him an habitual criminal would have been nullified and there would have been no new trial on the issue * * *.’ The court, discussing McVickers and Seeley, says (on p. 544, 261 P.2d on p. 528) that in those cases they only ‘decided that ‘a petitioner may * * * secure relief in habeas corpus from an erroneous adjudication of habitual criminal status where the facts * * * show that as a matter of law the prior conviction is of a crime which does not meet the definition of an offense included in said section 644.’ (In re Seeley, supra, 29 Cal.2d 294, 299, 176 P.2d 24, 28.³ ) Those cases did not decide that habeas corpus is available to review the sufficiency of the evidence to support a finding that a petitioner had suffered a prior conviction, nor did they decide that a new trial would be improper if a defect in the proof were found that would be amenable to correction on retrial.' (Emphasis supplied.)

People v. Morton, supra, 41 Cal.2d 536, holds on pages 544 and 545, 261 P.2d 523, that where defects in the proof of prior convictions are capable of correction on new trial they should be sent back for a limited new trial. The court says that such procedure (on p. 545, 261 P.2d on p. 528) ‘affords the defendant a fair hearing on the charge, and if it cannot be proved he will not have to suffer the more severe punishment.’ Although, as we stated, Morton was on ‘appeal’ case, the references to McVickers and Seeley, both habeas corpus proceedings, evince a present intention by the Supreme Court to treat the procedure in habeas corpus proceedings and appeals the same, at least as regards habitual-criminality adjudications. To that extent it modifies McVickers, Wolfson and Pearson.

Instances of referral back by the California Supreme Court to the trial court from whence an adjudication of habitual criminality came for limited factual determination have been common in recent years. That was done in In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913, In re Luce, 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918, and In re Tucker, 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921 (habeas corpus proceeding) and in People v. Ebner, 64 Cal.2d 297, 49 Cal.Rptr. 690, 411 P.2d 578 (an appeal).

As stated, People v. Morton, supra, evinces a Supreme Court policy which permits this court to refer this proceeding back to the superior court for a fact determination. However, although Morton modifies, it does not overrule In re McVickers, supra. Therefore, we may not dismiss this petition on the discussed issue. Similarity of the facts of the two matters is close. Similarity to the case of In re Pearson, supra, 30 Cal.2d 871, 875–876, 186 P.2d 401, is even closer, since the same crime (burglary, second degree) in the same sister state (Washington) was the prior crime involved. Pearson followed the rule in McVickers. Therefore, we must abide by the rule. (Orange County Water Dist. v. City of Riverside (1959) 173 Cal. App.2d 137, 165–166, 343 P.2d 450.) Otherwise, we would dismiss this phase of petitioner's application. We must obey the rule of McVickers; we do not have to like it. We disagree with its reasoning. Our reason: it does not differentiate the issues before the court at the time when the Los Angeles proceeding was tried (1946) from the issues 21 years later when petitioner seeks habeas corpus. Had attack on the primary action been by direct appeal, the issue would have been whether habitual criminality had been proved. On a petition for habeas corpus the issue is whether the petitioner was, or was not, guilty of, and convicted for, a crime upon which a charge of habitual criminality had properly been based. If he was not he was entitled to have the adjudication erased. In habeas corpus the burden is upon the petitioner to show illegality of his restraint in his application and by a preponderance of the evidence. (In re Malone, 44 Cal.2d 700, 704, 284 P.2d 805 (footnote); In re Dixon (1953) 41 Cal.2d 756, 760 264 P.2d 513.) As we have noted, petitioner here does not contend even now that the Washington burglary was an entry for any purpose other than with an intent to commit ‘grand or petit larceny of [some] felony.’ There is, it seems to us, very little likelihood that there was any other intent. It should be noted petitioner was represented in the Los Angeles proceedings by an attorney. It would seem ridiculous to assume that petitioner's attorney would have permitted petitioner to admit the prior conviction in Washington if the type of burglary there committed was a lesser crime than a California burglary. This court should not assume that an attorney would have been unaware of the rule then well established (see case cited in In re McVickers, supra, at p. 267 of 29 Cal.2d, 176 P.2d 40) that an habitual-criminal-type conviction committed in a sister state must meet the specifications of a Penal Code section 644 crime as defined in California. Therefore we cannot conceive that petitioner would have admitted a burglary committed NOT meeting those specifications when the result was a sentence of life imprisonment.

Assuming petitioner's counsel had not been aware of the rule described, petitioner had a right of appeal. It is the policy of the law to encourage use of time-tested processes of the law of which the right of appeal is one. The rule formulated by McVickers, followed by Seeley, Wolfson and Pearson, places a bonus upon delay: in this case 21 years' delay. (The Attorney General argues that upon principles of laches or lack of diligence the petition should be denied. In view of the long delays involved in the cases cited which, as stated, we must follow, that is an argument which we cannot entertain. (Orange County Water Dist. v. City of Riverside, supra, 173 Cal.App.2d 137, 165–166, 343 P.2d 450.) It must be addressed to the Supreme Court. Although in In re Swain, 34 Cal.2d 300, our Supreme Court stated (at p. 302, 209 P.2d 793, at p. 795) ‘it is the practice of this court to require that one who belatedly presents a collateral attack such as this explain the delay in raising the question,’ no such requirement was made in McVickers, supra, where the delay after the primary action challenged was eight years and the delay after the original conviction was 22 years. (We cannot assume the Supreme Court intends the stated practice to apply when a collateral attack is against an adjudication of habitual criminality.)

Although the matter must be referred back to the superior court in the Los Angeles action for determination of the question of the extent of the Washington state burglary, still to be determined is the question: Who will have the burden of producing evidence in the hearing in that court? That question can be discussed more clearly after we consider petitioner's next contention.

RE THE QUESTION OF THE WAIVER OF COUNSEL

We now turn to petitioner's contention that in the 1932 Washington proceedings he was not represented by counsel, was not advised of his right to counsel, and did not waive counsel. No record before us contradicts that verified allegation. In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913, had facts substantially similar. Woods invoked (as petitioner does here) Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and subsequent cases giving it retroactive application. Woods determined (on pp. 5–6 of 64 Cal.2d, 48 Cal.Rptr. on p. 691, 409 P.2d on p. 914) quoting United States exrel. Durocher v. LaVallee, 2 Cir., 330 F.2d 303: “[T]he [courts] may find it difficult to determine whether those tried in the remote past were indeed denied the assistance of counsel. * * * [H]owever, the fundamental nature of the right protected by Gideon v. Wainwright and the injustice attendant upon the continued imprisonment of those defendants who have been denied representation by counsel at an important stage of a criminal prosecution, have precluded the limitation of Gideon to prospective application.”

In re Woods, supra, at pages 7–9, 48 Cal.Rptr. 689, 409 P.2d 913, also states that a court could assume, based upon the presumption that an official duty has been performed and that every reasonable intendment is in favor of judgments collaterally attacked, that petitioner had been advised of his right to counsel. It could not assume, however, that a waiver of counsel had been knowingly, understandably and intelligently made. The reason: courts include every reasonable presumption against waivers of constitutional rights, and a presumption of a waiver on a silent record was impermissible. The court in Woods ordered the case referred back to the court in which the adjudication of habitual criminality had been made, setting forth some guidelines for a determination of the question of waiver. It pointed out that inflexible adherence to the record eschewing outside evidence was not a constitutional guarantee, that it could not be reasonably insisted that the record ‘reflect impossible prescience’ (on the part of the prosecution), and that conduct of the new hearing should depend ‘upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ (P. 8, 48 Cal.Rptr. p. 693, 409 P.2d p. 913.) The trial court could be expected, it was said to ‘employ the methods and techniques which have long been familiar to our judicial system.’ (P. 10, 48 Cal.Rptr. p. 694, 409 P.2d p. 918.)

The Woods case was one of a trilogy, the other two matters being In re Luce, 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918, and In re Tucker, 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921, all asserting the same rules. None of these cases was any more explicit in fixing the procedure of the new hearing on the question than we have indicated above. None of them discussed the burden of proof or the burden of going forward with the evidence on such a hearing.

A recent case has discussed that problem—as applied to a limited retrial after appeal. In People v. Coffey (July 1967) 67 A.C. 145, 60 Cal.Rptr. 457, 430 P.2d 15, our Supreme Court was concerned with a charge of an Oklahoma prior felony conviction originally denied by defendant. On the morning of the trial defendant moved to strike the accusation of the ‘prior.’ His grounds were that he had not understood his right to counsel in Oklahoma and had not effectively waived that right. The trial court denied the motion without hearing. Defendant was convicted and appealed. The Supreme Court reversed. It found on the substantive question that denial of a right to counsel was in violation of Gideon v. Wainwright, supra, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, that the Gideon rule was retroactive (Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; United States ex rel. Durocher v. LaVallee, 2 Cir., 330 F.2d 303, 310–312), and that it applied to foreign ‘priors' which in California gave rise to increased penal sanctions to the same effect as domestic ‘priors' (United States ex rel. Savini v. Jackson (2 Cir., 1957) 250 F.2d 349, 355; In re Woods, supra, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913.) The court says (on p. 156 of 67 A.C., 60 Cal.Rptr. on p. 464, 430 P.2d on p. 22): ‘Though these principles were first given application in a series of cases involving collateral attacks * * * it is clearly in interest of efficient judicial administration that attacks upon the constitutional basis of prior convictions be disposed of at the earliest possible opportunity * * *.’

The court then stated (on pp. 158–159 of 67 A.C., 60 Cal.Rptr. on p. 466, 430 P.2d on p. 24): ‘Although the facts of this case do not call upon us to delineate the nature of the contemplated hearing, we do so for the guidance of courts and counsel who will be called upon to deal with similar matters in the future: First, when a defendant, whether by motion to strike the prior conviction or convictions on constitutional grounds, or by denial of such prior conviction or convictions on constitutional grounds at the time of entering his plea to the same, raises the issue for determination, the court shall, prior to trial, hold a hearing outside the presence of the jury in order to determine the constitutional validity of the charged prior or priors in issue. Second, in the course of such hearing the prosecutor shall first have the burden of producing evidence of the prior conviction sufficient to justify a finding that defendant ‘has suffered such previous conviction.’ (Pen.Code, § 1025.) Third, when this prima facie showing has been made, the defendant shall thereupon have the burden of producing evidence that his constitutional right to counsel was infringed in the prior proceeding at issue. [Footnote 15.] Fourth, if defendant bears this burden, the prosecution shall have the right to produce evidence in rebuttal. Fifth, the court shall make a finding on the basis of the evidence thus produced and shall strike from the accusatory pleading any prior conviction found to be constitutionally invalid.' (Emphasis supplied.)

Footnote 15 referred to in the foregoing quotation states as follows: ‘Though the burden of proof as to the constitutionality of the charged prior conviction remains with the prosecution, and the burden of producing evidence rests initially with it, the latter burden shifts to the defendant upon proof of the fact of his having ‘suffered’ the prior conviction. (See Evid. Code, sec. 550.)'

Although the foregoing guidelines were set in a case arising on appeal, we can perceive no sound reason why the accused who raises the nonwaiver of counsel promptly should be disadvantaged by having to bear a greater burden than that imposed upon the petitioner who waits many years before challenging the validity of his conviction upon that ground. To place such a premium on inactivity would only encourage dilatory applications. This, we think, the Supreme Court did not intend. On the contrary, the foregoing quotations from the Coffey opinion urge promptness in raising the adequacy of a prior waiver of counsel. We hold therefore that the procedural steps set forth in Coffey are equally applicable here.

They also should be applicable to that portion of the to-be-ordered Los Angeles Superior Court hearing which involves the status of the Washington burglary as an habitual criminal adjudication. If the rule of People v. Coffey, supra, is applicable to an application for habeas corpus based upon a challenged waiver of counsel, as we have held it is, then a fortiori no sound reason exists to inflict harsher requirements of proof on the People regarding the determination of the validity of the habitual criminality adjudication. On the contrary, lesser policy considerations are involved. We enumerate and compare: (1) The right to counsel is a federal constitutional guarantee. Within limits clearly not exceeded here quantity-of-punishment of crime is purely a matter of state policy. (2) The concept of the right collaterally to attack inadequate representation by counsel is new (Gideon v. Wainwright, supra, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, was decided in 1963). The right collaterally to attack adjudications of habitual criminality is not new. (It all started in 1946.) Novelty of a judicial concept has characteristically prompted courts to assert rules (addressed to the burden of proof) of greater liberality to petitioners collaterally attacking their violation. (3) As a matter of ultimate justice, petitioner can more easily prove the issue of the status of the Washington crime. He was there. We do not share the optimism of the court in In re McVickers, supra, 29 Cal.2d 264, at page 272, 176 P.2d 40, at page 46, ‘The fact of a prior conviction is not ordinarily difficult of proof [by the People] * * *.’ This case is a vivid illustration of the fallacy of that statement. This is not a proceeding in which the guarantee against self-crimination applies. He who seeks to set aside an adjudication by a collateral attack has, and should have, the burden of proving its invalidity (within the limits of the rule in People v. Coffey, supra, 67 A.C. 145, 60 Cal.Rptr. 457, 430 P.2d 15).

The quartet of cases initiated by McVickers should be overruled to the extent that a petitioner who does not establish by his petition as a matter of law that he did not commit an habitual-criminal-type crime, although he was adjudicated to have done so, would be denied a right to collateral attack against the adjudication. We are powerless so to hold. We can and do hold, however, under the subsequent Supreme Court rulings cited, that he will have, on the hearing to be ordered, the burden of showing as a matter of fact that his prior crime was a nonhabitual-criminal-type.

We touch briefly upon another aspect of the proceeding before us. We have noted petitioner's San Diego sentence in 1964. There two habitual-criminal-type California prior convictions (San Francisco, 1938: Los Angeles, 1946) were charged and found but no adjudication of habitual criminality was made. A possible reason was the assumed validity of the Washington state conviction and the 1946 Los Angeles, California, adjudication of habitual criminality. We mention this for the reason that following Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and upon order by the United States Supreme Court the remittitur in said San Diego action has been recalled and appeal is now pending in the Court of Appeal, Fourth Appellate District. The reinstatement of the appeal and ultimate disposition of the primary (San Diego) action could present problems regarding the charged but not adjudicated question of habitual criminality. We cannot consider those problems here.

The order to show cause is discharged. The writ is granted insofar as relief is sought from the prior determination of habitual criminality, and the Superior Court of Los Angeles County is directed to redetermine petitioner's status as an habitual criminal in further proceedings in accordance with the views expressed herein. In all other respects the writ is denied.

FOOTNOTES

1.  Although petitioner alleges here he was then 17, the birth date on his reformatory fingerprint card indicates he was nearly 20 when committed.

2.  His codefendant did appeal, however, and it is because of that appeal we have a transcript of the proceedings at the Los Angeles trial.

3.  The statement in Morton which we have italicized is unassailable as applied to the facts of the Seeley case. There it appeared unequivocally that one of the crimes charged as an habitual-criminal-type ‘prior’ was not. Thus, in Seeley it did appear as a matter of law that the ‘prior conviction is of a crime which does not meet the definition of an offense included in said section 644.’ But that was not so in McVickers. There a Utah crime of ‘grand larceny’ was the ‘prior’ charged. In Utah the minimum limit of grand larceny was theft of any value over $50. The California minimum limit of grand theft is $200. Defendant's admission of the Utah ‘prior’ therefore did not admit anything more than theft of $50.01. It was incumbent upon the prosecution to prove a theft which would have constituted grand theft in California. That had not been done. That did not establish as a matter of law that a California habitual criminal had not been committed. It established only that there had been error in the adjudication of habitual criminality. Failure of such proof, had it been raised on appeal, would have resulted in a new trial limited to that issue. The McVickers majority opinion seems to concede that an appeal could have been taken by the petitioner there. (An appeal clearly could have been taken. The face of the record—plus the court's act in taking judicial notice of the law of a sister state—made the error apparent.) McVickers' majority opinion, however, did not discuss the possibility of sending the matter back to the court of primary jurisdiction to determine the question of fact of whether or not the Utah offense had been grand theft as defined in California. It assumed it was not and wiped out the adjudication as a prior. In In re Wolfson, supra, 30 Cal.2d 20, 180 P.2d 326, and again in In re Pearson, supra, 30 Cal.2d 871, 186 P.2d 401, the same assumption was made. Thus, petitioners there gained a big advantage over that which they would have enjoyed by a reversal on appeal. They did not have to face a retrial of the issue.

PIERCE, Presiding Justice.

FRIEDMAN and REGAN, JJ., concur.