IN RE: Eloy SANCHEZ (1979)

Court of Appeal, Third District, California.

IN RE: Eloy SANCHEZ, On Habeas Corpus.

Cr. 10094.

Decided: February 20, 1979

Eloy Sanchez, in pro. per. George Deukmejian, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller, and W. Scott Thorpe, Deputy Attys. Gen., for respondent.

Petitioner seeks a writ of habeas corpus to relieve him of the partial restraint imposed by a finding of prior felony conviction contained in the abstract of judgment.

On December 7, 1976, in Orange County Superior Court, petitioner pleaded guilty to sale of heroin (Health & Saf.Code, s 11352) and admitted a prior felony conviction. (Orange Co. Super. Ct. No. 36189.) In the instant proceeding, petitioner complains he was not properly advised of and did not expressly waive his constitutional rights before admitting the prior conviction. (In re Yurko (1974) 10 Cal.3d 857, 860, 865, 112 Cal.Rptr. 513, 519 P.2d 561.) The Attorney General properly concedes the lack of proper advisement and acknowledges that the finding of prior conviction must therefore be stricken. (In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)

Accordingly, we order the finding stricken. The allegation in the information of prior felony conviction, however, now stands unadjudicated. Petitioner may therefore be returned to Orange County Superior Court on order of that court for further proceedings on the allegation of prior conviction, if the court be so advised. (In re McCoy (1948) 32 Cal.2d 73, 77, 194 P.2d 531; see People v. Fisk (1975) 50 Cal.App.3d 364, 372-373, 123 Cal.Rptr. 414.) Further proceedings, if taken, must be commenced within 60 days after a copy of this order has been filed in the trial court and served on the district attorney. (Pen.Code, s 1382, subd. 2.)

The Orange County Superior Court is directed to modify the abstract of judgment by striking therefrom the finding of prior felony conviction. The Department of Corrections is ordered to redetermine petitioner's legal status without reference to the finding of prior conviction. Immediately upon this decision becoming final, the Clerk is ordered to file a true copy with the clerk of the Superior Court of Orange County and to serve a true copy upon the District Attorney of Orange County.

Since petitioner is not entitled to immediate release, the petition for writ of habeas corpus, having served its purpose, is denied.

PUGLIA, Presiding Justice.

REGAN and PARAS, JJ., concur.