In Re McVickers

SPENCE, J., Concurring and Dissenting.

I concur with the conclusion reached in the majority opinion that the writ should be discharged and that the petitioner should be remanded to custody. I further concur with the conclusion *282reached therein sustaining the trial court’s adjudication that petitioner is an habitual criminal by virtue of his two prior convictions of burglary and forgery. I dissent, however, from the conclusion reached with respect to the third prior conviction of grand larceny in Utah, and from the further conclusion that “petitioner is an habitual criminal who has been previously twice, but not three times, convicted of felonies enumerated in section 644 of the Penal Code (as am. Stats. 1935, p. 1699) and that he is, therefore, entitled to be accorded the benefits as well as the penalties of the law applicable to persons who have suffered two, rather than three, prior convictions. ...” I am further in disagreement with much of the reasoning employed in the majority opinion.

The majority opinion reaches the conclusions from which I dissent after a lengthy discussion of the circumstances under which an habitual criminal adjudication may be nullified in a proceeding on habeas corpus. However, as the majority opinion here does not nullify but, on the contrary, sustains the trial court’s adjudication that petitioner is “an habitual criminal,” and as the conclusion in the majority opinion, which is the subject of disagreement, concerns only the effect of the habitual criminal adjudication upon petitioner’s eligibility for parole, I shall discuss more fully in my dissent in another pending case (In re Seeley, post, p. 294 [176 P.2d 24] the question of the circumstances under which an habitual criminal adjudication may be nullified in a habeas corpus proceeding. Suffice it to say here that I am entirely willing to concede that the scope of review on habeas corpus may be different when the issue is the effect, rather than the validity, of a final judgment. ,In those cases in which habeas corpus is used to test the validity of a final judgment in a criminal case, the general rule is, subject to certain exceptions which will be discussed in my dissent in the Seeley case, that the “attack upon the judgment is subject to rules applicable to collateral assaults upon judgments in other cases. Accordingly, the writ lies only when the judgment is void upon its face. . . .” (13 Cal.Jur. 240.) But the rule appears to be otherwise when habeas corpus is used to test the effect of the judgment, for it is said in Hurd on Habeas Corpus 330, quoted with approval in In re Corryell, 22 Cal. 178, at page 182: “It acts directly on the effect of the judgment, to wit, the imprisonment ; but only collaterally on the judgment itself. ’ ’

As shown by the provisions of our habitual criminal law *283which were applicable to petitioner and are set forth in the majority opinion (Pen. Code, § 644, as am. Stats. 1935, p. 1699), it was provided that an.accused should be “adjudged an habitual criminal” regardless of whether he had suffered two or more than two of the specified prior convictions. In either event the law provided that the sentence or term of imprisonment should be “imprisonment in the state prison for life.” If the accused had suffered more than two priors, it was provided that he should “not be eligible for release on parole”; but if the accused had suffered only two priors, it was provided that he should “not be eligible for release on parole until he shall have served a minimum of at least twelve years.” It is for this reason that any attack upon a third prior conviction does not involve an attack upon the validity of the judgment adjudicating petitioner’s status as an habitual criminal but only an attack .upon the effect of that judgment in its relation to eligibility for parole. And while I cannot agree with the majority view that a judgment making an habitual criminal adjudication is not entitled to be accorded the same sanctity and finality as any other judgment, I have no quarrel with the view that the scope of review on habeas corpus, in testing the effect of such judgment by inquiry concerning a third prior conviction, is not subject to the rigid rules applicable to a collateral attack upon the validity of the judgment itself.

Assuming therefore that the inquiry with respect to the third prior conviction of grand theft is not confined to the face of the record in the criminal action in which the habitual criminal adjudication was made, the entire showing made in this proceeding, including that appearing on the face of the record, may be briefly stated. In a criminal action instituted in this state in 1938, petitioner was convicted of three felonies consisting of violations of the state narcotic laws. In that action petitioner admitted three prior convictions of felonies and service of terms therefor in state and federal prisons. The three prior convictions, as alleged in the information and admitted by petitioner, were (1) a conviction in 1924, in Utah, of the crime of grand larceny, a felony; (2) a conviction in 1925, in Nevada, of the crime of burglary, first degree, a felony; and (3) a conviction in 1928, in the federal court in California, of nine counts of violation of section 218 of the United States Criminal Code (T. 18 U.S.C.A., § 347), a felony (forging and uttering United States post-office money orders). *284Petitioner was adjudged to be an “habitual criminal” and "was sentenced to imprisonment in the state prison “for the term prescribed by law.” No claim was made in the trial court that any one of said prior convictions was not for one of the crimes specified in section 644 of the Penal Code or that any one of the offenses for which petitioner had been previously convicted was not ‘ ‘ an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the state prison.” (Pen Code, § 668.) No motion for a new trial was made, no appeal was taken, and the judgment of the trial court adjudicating petitioner’s status as an “habitual criminal” became final. Subsequently petitioner made an unsuccessful attempt to have the judgment modified or vacated and his motion was denied. The order denying‘the motion was affirmed on appeal. (People v. McVicker, 37 Cal.App.2d 470 [99 P.2d 1110].)

The additional showing made in this proceeding with respect to the challenged third prior conviction of grand larceny consists of presenting to this court a copy of the information and copy of the proceedings on sentence in the criminal action in Utah in'1924. It appears from the information that petitioner was jointly charged with another defendant with having committed the crime of ‘ ‘ Grand Larceny, a felony, ’ ’ in that ‘ ‘ The said defendants, on May 27, 1924, at the County of Weber, State of Utah, wilfully, unlawfully and feloniously took, stole and drove away a certain light six Studebaker automobile, Model 1923, bearing motor No. BM95849, belonging to B. Rosenberg, the same having a value in excess of $50.00.” Petitioner and his codefendant there entered pleas of guilty to the offense charged and were sentenced to and served terms for their offense in the Utah State Prison. Thus petitioner has merely shown that the challenged Utah prior conviction in 1924 of ‘ ‘ Grand Larceny, a felony, ’ ’ was for the theft in 1924 of a 1923 Studebaker automobile “having a value in excess of $50.00.”

While it is true that this state had, prior to the time of the commission of the Utah offense, raised from $50 to $200 the value element in its definition of “grand larceny” (Stats. 1923, ch. 129, p. 271; now known as “grand theft,” Stats. 1927, ch. 619, p. 1047), and while it is further true that this state had not, prior to the time of the commission of the Utah offense, provided that the theft of an automobile of any value should constitute grand theft (see amendment to Pen. Code, *285§487, in 1927, Stats. 1927, ch. 619, p. 1047), petitioner has made no attempt to show that the offense committed, and for which he was convicted, in Utah in 1924 (the theft of a 1923 Studebaker automobile), was not at the time the offense was committed there “an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the state prison.” (Pen. Code, § 668.) Regardless of whether it might be deemed a matter of common knowledge that a 1923 Studebaker automobile had a value of more than $200 in 1924, petitioner has made no showing that the particular automobile, for the theft of which he was convicted in 1924 upon his plea of guilty, did not have a value in excess of $200. It is the settled rule that the burden of proof is on the petitioner in a habeas corpus proceeding (Johnson v. Zerbst, 304 U.S. 458, 468 [58 S.Ct. 1019, 82 L.Ed. 1461]; In re De La Roi, 27 Cal.2d 354, 365 [164 P.2d 10]; In re Wallace, 24 Cal.2d. 933, 938 [152 P.2d 1] ; In re Egan, 24 Cal.2d 323, 329 [149 P.2d 693]; In re Bell, 19 Cal.2d 488, 501 [122 P.2d 22] ; In re Connor, 16 Cal.2d 701, 707 [108 P.2d 10]; In re Mooney, 10 Cal.2d 1, 85 [73 P.2d 554]; In re Williams, 183 Cal. 11, 15 [190 P. 163] ; In re Taylor, 64 Cal.App.2d 47, 51 [148 P.2d 143]; In re Knight, 62 Cal.App.2d 582, 586 [144 P.2d 882]; In re Mirando, 15 Cal.App.2d 443, 445 [59 P.2d 544]; People v. Sherman, 127 Cal.App. 417, 420 [15 P.2d 881]; In re Cough, 124 Cal.App. 493, 496 [12 P.2d 968]) and, in the absence of the showing mentioned, I am of the opinion that petitioner is entitled to no relief in this proceeding.

The majority opinion makes an entirely different approach to this problem and I am not certain of its implications. Is it implied by the majority opinion that regardless of the value of the property taken, a prior conviction of grand larceny in another jurisdiction can never be counted as a prior conviction here if the value element of the crime, as defined in the other jurisdiction, is less than $200 ? Or is it implied that such prior conviction of grand larceny may be counted provided the value of the property taken exceeds $200? If the latter be the implication intended by the majority opinion, then does not the majority opinion imply that the burden of proof with respect to the value element is on respondent rather than on petitioner in this habeas corpus proceeding ?

The majority opinion states; “The pleading and proof or admission of a conviction for grand larceny in Utah, without more, establishes that petitioner was convicted of the theft of *286property of a value of $50.01, a crime which is not enumerated in section 644 of the Penal Code.” (Emphasis added.) In support of this proposition, the majority opinion cites cases dealing with appeals from judgments adjudicating habitual criminal status, in which cases it is indicated that priors may not be counted unless the prosecution has sustained the burden in the trial court. Despite some apparent conflict on this subject in the authorities dealing with appeals (cf. People v. Shaw, 137 Cal.App. 533 [30 P.2d 1031], and People v. Hayes, 3 Cal.App.2d 59 [39 P.2d 213]), it will be assumed for the purpose of this discussion that the burden was on the prosecution in the trial court. Nevertheless, both authority and reason dictate that the burden is and should be placed on the petitioner in this habeas corpus proceeding. Petitioner has failed to sustain that burden in this proceeding, for it is he who rests upon the record of the Utah conviction “without more” and it appears probable that he could have made no further showing with respect to the Utah offense which would have been helpful to him.

As the majority opinion herein discusses quite generally the nature and operation of our habitual criminal law (Pen. Code, § 644), it appears appropriate here to make certain general observations with respect to these matters. As above indicated, however, the question of the circumstances under which a judgment adjudicating the accused to be an habitual criminal may be nullified on habeas corpus will be more fully discussed in my dissent in the Seeley case.

The majority opinion discusses “the philosophy of the indeterminate sentence law.” This discussion appears to be beside the point in a ease dealing with our habitual criminal law. The Legislature of our state was fully aware of the philosophy which had been embraced in our indeterminate sentence law when it decided to adopt a different philosophy with respect to habitual criminals by providing in our habitual criminal law that the sentence should be determinate rather than indeterminate. (See People v. Vaile, 2 Cal.2d 441, 445 [42 P.2d 321].) The Legislature clearly decreed that the indeterminate sentence law should have no application to habitual criminals when it fixed the sentence of every habitual criminal, regardless of whether he had suffered two or more prior convictions, at “imprisonment in the state prison for life.” (Pen. Code, § 644, as am. Stats. 1935, p. 1699.) The distinction between those having suffered two prior convic*287tions and those having suffered more than two prior convictions was not a distinction as to sentence or length of term of imprisonment but merely a distinction as to eligibility for parole. It therefore cannot be said that it is any part of the philosophy of our habitual criminal law that “the length of terms of imprisonment . . . shall be subject to redetermination from time to time. ’ ’ On the contrary, it is the philosophy of that law that a final adjudication that the accused is an habitual criminal shall fix for all time the sentence or length of term of imprisonment at life imprisonment, subject only to the provision relating to eligibility for parole in the case of those who have suffered but two prior convictions. (See, however, recent amendments, Stats. 1945, ch. 934.)

There are many who doubt the soundness of the philosophy underlying our habitual criminal law but there is no doubt concerning the philosophy which is embraced therein. The Legislature deemed it entirely sound and consistent to embrace one philosophy in our indeterminate sentence law, which applies to those with less than two prior convictions, and to embrace a different philosophy in our habitual criminal law which applies to those with two or more prior convictions. In view of the action of the Legislature, it does not appear proper for the courts to base their reasoning upon a confusion of these two philosophies.

It is reasoning based upon a confusion of these two philosophies which leads to the majority view that no particular finality or sanctity should be attached to a judgment making a “formal adjudication that a prisoner is an habitual criminal”; and that an attack on an habitual criminal adjudication “is directed only against a determination of facts,” in which attack the rules applicable to collateral attack upon judgments should not be applied. I cannot agree with these conclusions. '

Section 644 of the Penal Code provides that one who has suffered two or more of the specified prior convictions “shall be adjudged an habitual criminal and shall be punished by imprisonment in the state prison for life.” Such adjudication is a final adjudication of the accused’s status as an habitual criminal just as a judgment of conviction of a felony is a final adjudication of the accused’s status as a felon. If the Legislature had not so intended, there would have been no purpose in providing in mandatory terms for such adjudication. Any judgment making such adjudication is subject to *288direct attack on appeal in the same manner as any other judgment and, after such judgment becomes final, a collateral attack thereon should be governed by the same rules which apply to collateral attacks on final judgments generally. It' is no answer to point out that the omission of such adjudication would not be fatal provided “the judgment contained an adjudication that the defendant had been found guilty of the several crimes which, when committed by a single person, rendered him an habitual criminal.” (People v. Vaile, supra, 2 Cal.2d 441, 444-445.) In the Vaile case, there was no question, under the findings of the court, of the sufficiency of the prior convictions under section 644 of the Penal Code and it was merely held that the effect of such findings was the same as though the habitual criminal adjudication had actually been made. That case arose on appeal and it was neither held nor indicated that a judgment adjudicating habitual criminal status should be treated in a manner different from other judgments when subjected to collateral attack. On the other hand, it seems clear that where no habitual criminal adjudication is made, an attack in a proceeding on habeas corpus on a judgment containing mere findings of prior convictions would be an attack on the effect of such judgment rather than an attack upon its validity.

There are certain recent cases decided in the District Courts of Appeal, some of which are cited in the majority opinion and some of which lend support to the views expressed in the majority opinion. The first of these cases was In re Connell, 68 Cal.App.2d 360 [156 P.2d 483], which was decided in 1945. The court there, without discussing the question, apparently treated the scope of review on habeas corpus of an habitual criminal adjudication as being at least equally as broad as the scope of review on appeal. In this respect I believe the court erred. It is significant to note that the decision in the Connell case was based upon authorities dealing with direct attack upon appeal. Not a single authority was cited there dealing with collateral attack on habeas corpus. The court there did not confine its review to an examination of the face of the record in the criminal proceeding in which the habitual criminal adjudication had been made, but examined the record of the petitioner’s prior conviction of “auto theft, a felony” committed in Utah in 1935, and the laws of Utah for the purpose of nullifying the habitual criminal adjudication and ordering petitioner’s discharge from custody. For *289the reasons stated in my dissent in the Seeley case, I am of the opinion that the court in the Connell case went beyond the permissible scope of review on habeas corpus.

The Connell case was thereafter cited with approval and followed in In re Howard, 69 Cal.App.2d 164 [158 P.2d 408]. In that case respondent questioned “the propriety of habeas corpus under the circumstances” but that question was apparently brushed aside without discussion, upon the authority of the Connell ease and two cases involving direct attack, upon appeal. The Howard case was in turn cited with approval in In re Kingsbury, 74 Cal.App.2d 959 [170 P.2d 82], but it appears possible that the court there confined the scope of review to the “face of the record” [p. 1088). Both the Connell case and the Howard case were cited with approval in In re Thompson, 72 Cal.App.2d 747 [165 P.2d 533], but there the habitual criminal adjudication was not nullified as the court was dealing only with the effect of such habitual criminal adjudication in its relation to a third prior conviction of “larceny,” a felony, in Wisconsin. Neither the Connell case nor the Howard case was cited in the recent case of In re Williams, 76 Cal.App.2d 161 [172 P.2d 558], but that decision does declare void a judgment adjudging the petitioner to be an habitual criminal, without discussion of the scope of review on habeas corpus. For the reasons stated herein as well as in my dissent in the Seeley case, I am of the opinion that these recent decisions of the District Courts of Appeal should be disapproved insofar as they hold or indicate that when habeas corpus is used to attack the validity of an habitual criminal adjudication, the scope of review may extend beyond the face of the record in the proceeding in which the habitual criminal adjudication was made.

The earlier case of In re Taylor, 64 Cal.App.2d 47 [148 P.2d 143], is discussed in the majority opinion. No relief was given petitioner there even though the prior conviction under consideration was one for the crime of “Larceny, a felony,” committed in North Carolina. The scope of review on habeas corpus was not discussed, but the court held that as the burden of proof was on the petitioner in a habeas corpus proceeding and as the petitioner had failed to sustain the burden, the writ should be discharged. That case is direct authority for denying any relief to petitioner here as he has wholly failed to show that the offense committed in Utah, and *290for which he suffered his prior conviction there of “grand larceny, a felony,” was not an offense within the purview of section 644 of the Penal Code or that it was not “an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the state prison. ’ ’ (Pen. Code, § 668.)

It must be conceded that the habitual criminal laws have presented many perplexing problems to the courts and to others charged with the administration of our penal laws. Many of these problems arise because of the differences in the laws of the several states where the prior convictions have been had. In some states certain offenses are defined in a manner similar to offenses defined in our Penal Code but are given different names. In other states certain offenses which are given names similar to offenses specified in our Penal Code are defined as having somewhat different statutory elements. The present case presents a typical example. This state defines theft (Pen. Code, § 484) and divides the crime into two degrees (Pen. Code, § 486) known as grand theft (Pen. Code §487) and petty theft (Pen. Code, § 488). In many other states the crime of “theft” is unknown as such but most states define a similar offense under the name of “larceny.” The essence of the offense of theft or larceny is generally the unlawful taking of the property of another but the statutory definitions vary in the several jurisdictions. (32 Am.Jur. 886.) Furthermore, some states provide for no degrees of larceny and make any larceny a felony. Other states divide larceny into two degrees, ordinarily distinguished by.the names “grand larceny” and “petit larceny,” and make the first a felony and the second a misdemeanor. Here again, however, the statutory distinctions between the two degrees differ. As stated in Wharton’s Criminal Law (12th ed.) volume 2, section 1098, “The variations under statute [as to degrees of larceny] are too numerous to be stated here.”

This state now defines grand theft as the' taking of certain specified property of any value, or the taking of certain other specified property “of' a value exceeding fifty' dollars,” or the taking of other property generally “of a value exceeding two hundred dollars,” or the talcing of property of any value “from the person of another.” (Pen. Code, § 487.) Research fails to disclose any other state which has a statutory definition of the crime of “grand theft” or of “grand larceny” which is substantially identical. It appears that' many other *291jurisdictions make the dividing line between the felony and misdemeanor in this type of crime to depend on whether the value of the property taken exceeds $50. Assuming then, as was the case with petitioner here, that an accused is charged in this state with a prior conviction of “grand larceny, a felony” in Utah, where that crime is defined as having a value element different from the value element of the crime of “grand theft” as defined in this state, the question presented for determination is whether such prior conviction may ever be counted as a prior conviction of “grand theft” within the meaning of our habitual criminal law. (Pen. Code, § 644.)

As I read the majority opinions in this case and in the Seeley case, I am inclined to think that it is implied in said opinions that a conviction of “grand larceny” in Utah may, under certain circumstances, be counted in this state as such prior conviction. If this were not the rule, then an accused who had committed several offenses of “grand larceny” in Utah could never be adjudged an habitual criminal in this state by reason of such priors, even though property of great value had been taken in the commission of each of said offenses. Furthermore, any other rule would be contrary to the rule indicated by numerous decisions in this state including In re Taylor, supra, 64 Cal.App.2d 47; People v. Morrison, 26 Cal.App.2d 616 [80 P.2d 94]; People v. Hayes, supra, 3 Cal.App. 2d 59; People v. Pace, 2 Cal.App.2d 464 [38 P.2d 202] ; and People v. Shaw, supra, 137 Cal.App. 533.

The doubt concerning the above mentioned implication arises by reason of several expressions used in said majority opinions. In the majority opinion herein, it is said that the examination of such prior conviction for the purpose mentioned requires “merely a consideration of documentary and record evidence”; that “In applying section 644 the courts of this state may take cognizance only of what has been lawfully adjudicated” in the other jurisdiction; that “any court in which it (the Utah prior conviction of grand larceny) is presented must look at once to Utah’s definition of grand larceny to ascertain whether the conviction there of that offense is a conviction of a felony enumerated in our section 644”; and that “Here it affirmatively appears by the record that the prior Utah conviction alleged in the information and admitted by defendant is a conviction of an offense which, insofar as the adjudicated facts are concerned, is by California law *292a misdemeanor and, hence, constitutes no basis for habitual criminal adjudication.” In the majority opinion in the Seeley case, it is said: “It is not the crime which a defendant may have committed in a sister state, but the crime of which he has been convicted therein, that determines his status under sections 644 and 668 of the Penal Code. The adjudicated elements of the offense must meet the requirements of the California law.” But these doubts to which reference has been made seem to be dispelled by the implication in the majority opinion herein that a prior conviction of “grand larceny” in Utah is insufficient only where there is “pleading and proof or admission of a conviction for grand larceny in Utah, without more. . . (Emphasis added.) What “more” by way of pleading or proof may be required is not stated. In other words, the majority opinion fails to indicate the circumstances under which a prior conviction of “grand larceny” in Utah may ever be counted as a prior conviction for the purposes of our habitual criminal law.

The customary method of alleging “grand larceny” in Utah is no doubt exemplified by the Utah information which was filed against petitioner in 1924. The only required allegation regarding value in Utah was that the property taken had a value “in excess of $50.00.” Any allegation of a higher value would have been an immaterial allegation. If the information had alleged that the property taken was of the value of $1,000, the Utah court would have properly informed petitioner on arraignment for plea that if he had taken property of a value in excess of $50, any dispute as to the value as between $50.01 and the higher value alleged in the information was wholly immaterial. Likewise, the Utah court would have properly instructed the jury to like effect in the event that there had been a conflict in the evidence on value at the trial. In case of either a plea of guilty or a verdict of guilty of “grand larceny” in Utah, the only fact “adjudicated” with respect to value would have been that the property had a value “in excess of $50.00,” as required by the Utah statute. We therefore cannot content ourselves, as do said majority opinions, with talking of “adjudicated facts” or “adjudicated elements,” for if we do, no prior conviction of “grand larceny” in Utah could ever be counted as a prior conviction in this state so long as there remains any difference whatever in the value element as required by the Utah definition of grand larceny and as required by the California definition of grand *293theft. While this last statement may be subject to qualification by virtue of the fact that under our present law the taking of particular classes of property, including automobiles, constitutes grand theft regardless of the value of such property (Pen. Code, §487), it would necessarily be true as to Utah convictions for the taking of any property not falling within such particular classes. That such is not the rule in this state is clearly indicated by the authorities cited above.

It is true that a conviction in Utah for grand larceny might be either (1) for an offense involving property of a value of from $50.01 to $200 or (2) for an offense involving property of great value, perhaps of the value of $10,000 or more; and it is further true that in California an offense committed in this state and falling within the first class would be a misdemeanor only. (Pen. Code, §§ 487, 488.) It therefore appears that the crimes of grand larceny in Utah and grand theft in California are crimes which are similar but as to which the statutory definitions are not substantially identical. Under such circumstances it appears appropriate, when the prosecution relies upon a prior conviction of grand larceny in Utah, that the burden should be placed on the prosecution in the trial court to prove that the actual offense committed in Utah, and for which the accused suffered his felony conviction there, was an offense within the purview of sections 644 and 668 of the Penal Code. In such case, if the prosecution fails to assume the burden imposed upon it, then the accused has his remedy by way of a direct attack on appeal. But if a judgment adjudicating the accused to be an habitual criminal becomes final and the question is raised by the accused on habeas corpus, it is equally appropriate that the burden should be placed upon the accused in such proceeding in accordance with established rules. Assuming therefore that petitioner here is entitled to the widest latitude in his attack upon the effect, rather than upon the validity, of the habitual criminal adjudication, petitioner has made no showing whatever that the offense committed in Utah, and for which he suffered his conviction there in 1924, was not an offense within the purview of sections 644 and 668 of the Penal Code.

Reference is made in the majority opinion to certain language appearing in People v. McVicker, supra, 37 Cal.App. 2d 470, in which case an order denying this petitioner’s motion to vacate the judgment adjudicating his habitual criminal status was affirmed. That was not a proceeding on habeas *294corpus and any language in that opinion which related to the relief that might be had in a proceeding on habeas corpus was obviously dictum. Under no theory could that language be controlling here and I believe that such language should be disapproved insofar as it may be said to be in conflict with the views expressed herein or in my dissent in the Seeley case.

For the reasons stated, I am of the opinion that the writ should be discharged and that the petitioner should be remanded to custody without any declaration by this court that petitioner “has been previously twice, but not. three times, convicted of felonies enumerated in section 644 of the Penal Code.”

Edmónds, J., and Traynor, J., concurred.