I dissent.
Petitioner was convicted of one count of forgery and one count of grand theft, and it was found in the judgment of conviction that he had suffered three prior felony convictions, although two of the three priors charged against him had been dismissed on motion of the district attorney before the ease was submitted to the jury. Probation was denied, and it was ordered that the sentences on the primary counts should run consecutively. Petitioner appealed. The judgment was affirmed and became final. (People v. Bartges, 126 Cal.App.2d 763 [273 P.2d 49]. No petition for hearing was filed in this court.) Petitioner then applied to this court for a writ of habeas corpus, and we • issued an order to show cause why the writ should not issue. Thereafter, the District Court of Appeal was apprised of the fact that two of the three priors charged had been dismissed and on grounds of mistake it recalled the remittitur and modified the judgment of conviction by striking therefrom the finding that petitioner had suffered two of the three prior felony convictions. The judgment, as modified, was affirmed. (People v. Bartges, 128 Cal.App.2d 496 [275 P.2d 518].) Thus, the judgment *250no longer finds petitioner guilty of a charge not contained in the information.
The controlling question in this habeas corpus proceeding is whether the District Court of Appeal acted in excess of its jurisdiction in affirming the judgment as modified rather than reversing it insofar as it imposed consecutive terms of imprisonment. Although the trial court, in denying petitioner’s application for probation and in sentencing him to consecutive terms on the primary offenses, might have been influenced by the mistaken belief that he had suffered three prior felony convictions and although the District Court of Appeal could have reversed the judgment with directions to resentenee petitioner and to reconsider his application for probation in the light of the corrected judgment (see People v. Morton, 41 Cal.2d 536, 545 [261 P.2d 523]), I do not believe that if the District Court of Appeal erred in affirming the judgment as modified, its error was jurisdictional.
It is not suggested that the claimed error in the present case raises any constitutional or other question of extraordinary importance that would justify departure from the usual limitation that the writ of habeas corpus can be used only as a test of jurisdiction. (See In re Bell, 19 Cal.2d 488, 492-495 [122 P.2d 22]; In re Trombley, 31 Cal.2d 801, 812 [193 P.2d 734].) Thus, if a sentence is within the power of the trial court and the judgment is regular on its face, the fact that under the circumstances the sentence may be unduly severe cannot be inquired into by a writ of habeas corpus. (In re Marley, 29 Cal.2d 525, 531 [175 P.2d 832]; Ex Parte Miller, 89 Cal. 41, 42 [26 P. 620]; In re Nicholson, 24 Cal.App.2d 15, 16-17 [74 P.2d 288]; In re Azevedo, 42 Cal.App. 662, 663 [183 P. 952]; see also In re Pedrini, 33 Cal.2d 876, 878 [206 P.2d 699].)
It is within the discretion of the trial court to direct that a defendant, who has been found guilty of the offense charged against him, be denied probation (Pen. Code, § 1203) and that he serve consecutive sentences (Pen. Code, § 669). The denial of probation and the imposition of consecutive sentences on petitioner were therefore within the power of the trial court even though it might have erred in exercising its discretion. On appeal, the District Court of Appeal had power to “reverse, affirm, or modify” the judgment. (Pen. Code, § 1260; People v. Craig, 17 Cal.2d 453, 458 [110 P.2d 403].) It did modify and affirm and, even if it erred in affirming rather than reversing with directions to resentence, it did not “exceed its power” in doing so.
*251At most, the District Court of Appeal erred in applying the provisions of article VI, section 4%, of the California Constitution by failing to reverse the judgment with directions to resentence petitioner and to reconsider his application for probation in the light of the corrected judgment. If the propriety of an appellate court’s application of article VI, section 4%, can be questioned by a petition for a writ of habeas corpus, then a great number of this court’s rulings on questions of prejudicial error will be subject to further review and the finality of criminal judgments will be seriously impaired.
Moreover, at the time the District Court of Appeal recalled the remittitur,* the attorney general, in his ‘1 Suggestion of Grounds For Recall of Remittitur,” raised the question of the propriety of modifying the judgment without reversing for reconsideration of petitioner’s application for probation and resentencing on the basis of the judgment as modified. Counsel for petitioner was served with a copy of this document, but made no reply, and failed to petition for a rehearing in the District Court of Appeal or to file a petition for hearing in this court after the District Court of Appeal had filed its opinion modifying and affirming the judgment of conviction. Petitioner has not offered any excuse for his failure to exhaust his remedies by way of appeal. “The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction. [Citations.]” (In re Dixon, 41 Cal.2d 756, 759 [264 P.2d 513].)
I would deny the writ.
Edmonds, J., and Spence, J., concurred.
For the purposes of our decision in tho present habeas corpus proceeding, the fact that the District Court of Appeal recalled the remittitur and modified the judgment has no more effect than if the judgment as thus modified had been entered originally. See In re Rothrock, 14 Cal.2d 34, 39 [92 P.2d 634].