In re Van Heflin

On November 1, 1973, petitioner entered a plea of guilty to a violation of section 217, Penal Code (assault with intent to commit murder), and two violations of then section 11500.5, Health and Safety Code (possession for sale of heroin), and admitted a prior (1961) felony conviction (possession of marijuana). Reciting two earlier trials in the cause and the death of the prosecution witness, the People in writing acquiesced in the pleas. Petitioner was sentenced on November 27, 1973.

At the time of oral pronouncement of judgment and sentence the trial court requested and received from petitioner a waiver of formal arraignment for judgment; it then sentenced him on each count to the state prison “for the term prescribed by law,” said terms to run concurrently. The court made no mention of the admitted prior felony conviction during the oral sentencing proceeding; further, the court’s minute order of November 27, 1973, contains no reference to the prior. However, reference to the prior felony conviction does appear in the minute order of judgment and in the abstract of judgment.^[1]

Petitioner first sought writ of habeas corpus in the superior court in Sacramento County in which he was confined. In accord with the procedure set forth in In re Crow, 4 Cal.3d 613 [ 94 Cal.Rptr. 254 , 483 P.2d 1206 ] the petition was transferred to the Los Angeles Superior Court, the sentencing court, which summarily denied relief. Petitioner then filed petition for writ of habeas corpus in this court, We determined that the petition stated a prima facie case for relief based upon the inclusion of the prior felony conviction in the abstract of judgment in the absence of reference thereto by the court when sentencing petitioner, but declined to transfer the petition to the court of appeal in the district in which petitioner is confined inasmuch as his challenge to the abstract of judgment is directed to what would amount to a procedural error in the oral pronouncement of judgment and sentence. (Griggs v. Superior Court, 16 Cal.3d 341 , 347 [ 128 Cal.Rptr. 223 , 546 P.2d 727 ].) Thus, this court issued an order to show cause; written return in

Implicit in the decision to entertain the petition on its merits is our conclusion, based on Griggs v. Superior Court, 16 Cal.3d 341 [ 128 Cal.Rptr. 223 , 546 P.2d 727 ], that there is no longer any territorial limitation that limits the exercise of habeas corpus jurisdiction by a Court of Appeal. The California Supreme Court, in Griggs established that any territorial limitations on the jurisdiction of superior courts to entertain petitions for and to grant relief in habeas corpus matters as may have existed prior to 1966 were eliminated by constitutional revision in that year (Cal. Const., art. VI, § 10, adopted Nov. 8, 1966). (16 Cal.3d, at p. 343.) Inasmuch as section 10 of article VI of the California Constitution grants identical original jurisdiction in habeas corpus proceedings to both the Court of Appeal and the superior court, it follows that the 1966 constitutional revision also grants such state-wide jurisdiction to the Court of Appeal.^[2]

Although the grant of state-wide jurisdiction is not without some procedural difficulties, exercise of jurisdiction by this court in the case at bench is appropriate because the original habeas corpus petition was properly transferred to the sentencing court in this district. Moreover, review of the superior court file in petitioner’s case can be more easily accomplished within this district.

In addition to attacking the propriety of the inclusion of his prior felony conviction in the abstract of judgment, petitioner challenges the legality of his confinement under then section 11351, subdivision (b), Health and Safety Code, insofar as it precluded parole consideration for a minimum of six years.^[3] However, petitioner concedes that these additional contentions were not raised in the superior court, and in light of the factual dispute regarding the minimum eligibility term, it is our view that they are not now properly before this court. (In re Hillery, 202 Cal.App.2d 293 , 294 [ 20 Cal.Rptr. 759 ].) Also there is a question of fact underlying petitioner’s challenge to the nature of his prior felony conviction which was not raised in the superior court. But since

By its omission of any mention of the admitted prior felony conviction in its oral pronouncement of judgment and sentence, the trial court failed to make it clear that petitioner was sentenced as one whose prior conviction had been admitted.^[4] Under such circumstance People v. Mesa, 14 Cal.3d 466 [ 121 Cal.Rptr. 473 , 535 P.2d 337 ], mandates that the reference to the prior felony conviction be stricken from the abstract of judgment.

The court in Mesa quoted from In re Candelario, 3 Cal.3d 702 , 7Ó6 [ 91 Cal.Rptr. 497 , 477 P.2d 729 ] to the effect that in the absence of evidence to the contrary, it may be inferred from the trial court’s failure to refer to an admitted prior in oral pronouncement of judgment, that the omission was an act of leniency by the court, with the silence operating as a finding that the prior conviction was not true. The Attorney General here argues that the file of petitioner’s case was before the sentencing judge, thus he was well aware of the prior and intended to and in fact did sentence petitioner as one whose prior felony conviction had been admitted; and that clearly this may be inferred from the (1) written memorandum executed by the district attorney and filed on November 1, 1973 (the day the guilty pleas were entered) recommending that petitioner be allowed to plead guilty to violations of section 217, Penal Code (count I) and section 11500.5 (now § 11351) Health and Safety Code (counts II, III) “while admitting a prior narcotic conviction,” (2) minute order of November 1, 1973, reciting that petitioner admitted the prior felony conviction, and (3) letter dated October 7, 1974, directed to petitioner’s counsel by the sentencing judge (in response to petitioner’s informal request to modify the abstract of judgment by striking reference to the prior) advising that on November 1, petitioner admitted the prior which would make applicable that portion of section 11351 which states, “or if admitted by the person.” This letter did not mention petitioner’s