In re JOHN FRANCIS McVICKERS, on Habeas Corpus, 29 Cal. 2d 264

SCHAUER, J. Petitioner, by application for the writ of habeas corpus, seeks review of the adjudication or finding that he, “having been previously three times convicted, upon charges separately brought and tried, and having served separate terms therefor in state and/or federal penitentiaries for crimes enumerated in

Section 644 of the Penal Code . . ., is an habitual criminal under the provisions of

Section 644 of the Penal Code.” For the reasons hereinafter expressed we have concluded that a prisoner can, on application for habeas corpus, attack and secure appropriate relief from such an adjudication of habitual criminal status where it appears from the facts shown, either upon the face of the record or by satisfactory proof, that as a matter of law a prior conviction upon which the adjudicated status depends is of a crime which does not meet the definition of any offense enumerated in

section 644. From the showing here it appears as a matter of law that petitioner in truth has been not three times but only twice convicted of felonies enumerated in

section 644 of the Penal Code. The pertinent provisions of the Penal Code under which petitioner was adjudged an habitual criminal, as they read at the time petitioner committed the primary offenses of which he was convicted (violations of the state narcotic laws) and at the time judgment against petitioner was entered, were as follows:

Section 644 (as am. Stats. 1935, p. 1699) : “Every person convicted in this state of any felony who shall have been previously twice convicted upon charges separately brought and tried, and who shall have served separate terms therefor in any state prison and/or federal penitentiary, either in this state or elsewhere, of the crime of . . . burglary, . . . grand theft, . . . forgery, . . . shall be adjudged an habitual criminal and shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole until he shall have served a minimum of at least twelve years.

Every person convicted in this state of any felony who shall have been previously three times convicted, upon charges separately brought and tried, and who shall have served separate terms therefor in any state prison and/or federal penitentiary, either in this state or elsewhere, of the crime of . . . burglary, . . . grand theft, . . . forgery, . . . shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole . . .”

Section 668 (as am.

Stats. 1927, p. 1065) : “Every person who has been convicted in any other state, government, or country, of an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime committed within this state in the manner prescribed in sections 644, 666 and 667, and to the same extent as if such prior conviction had taken place in a court of this state. ’ ’ It is settled that “In order to adjudge a defendant an habitual criminal the test is not whether he shall have been twice convicted of any felonies, but whether he shall have been twice convicted of felonies enumerated in

section 644 of the Penal Code.” (Italics added.) (People v. Lohr (1938), 28 Cal.App.2d 397, 399 [82 P.2d 615].) It is also settled that the crimes enumerated in

section 644 must be understood to be crimes as defined in the laws of California and, if committed elsewhere, regardless of the names by which they may be designated, must in their substance come within California’s

definitions of the enumerated crimes. (People v. McGee (1938), 24 Cal.App.2d 391, 394 [75 P.2d 533] ; People v. Morrison (1938), 26 Cal.App.2d 616, 618 [80 P.2d 94] ; People v. Lohr (1938), supra; People v.

McChesney (1940), 39 Cal.App.2d 36, 41 [102 P.2d 455] ; In re Taylor (1944), 64 Cal.App.2d 47, 50 [148 P.2d 143] ; In re Connell (1945), 68 Cal.App,2d 360, 363 [156 P.2d 483] ; In re Howard (1945), 69 Cal.App.2d 164 [158 P.2d 408].) Petitioner seeks to show that two of the prior convictions which formed the basis of the adjudication that he is an habitual criminal—one a conviction of an offense against the laws of Utah and one a conviction of an offense against the laws of the United States— were of offenses the adjudicated elements of which did not amount to “crimes enumerated in

section 644“ as defined by the laws of California. The record of petitioner’s conviction of the primary or substantive offenses shows that, by information filed January 6, 1938, petitioner was charged in three counts with violation of the state narcotic laws. As to the three asserted prior convictions of felony and service of a term of imprisonment for each, the record shows that the alleged prior convictions were for “Grand Larceny, a felony,” in Utah; “burglary, First Degree, a Felony,” in Nevada; and “Violation of

Section 218 of the Criminal Code of the United States of America [nine counts of forging postal money orders], a felony.” Petitioner pleaded not guilty to counts one and two, guilty to count three, and admitted the three prior convictions as charged. He was tried and found guilty of the primary offenses charged in counts one and two. Thereafter, upon arraignment for judgment, he moved that he be adjudged “not an habitual criminal” on the ground that his was one of those “exceptional cases” in which “the court may, in its discretion, provide that the defendant is not an habitual criminal. ’ ’ (Pen.

Code, § 644.) The motion was denied. Judgment of conviction and adjudication of habitual criminality was entered. Petitioner made no motion ■ in arrest of judgment or for a new trial and did not appeal. After the time to appeal had expired petitioner moved the trial court to vacate or modify the judgment. Petitioner's attack on the judgment was directed only at the determination as to prior convictions. His motion was denied and he appealed. The order denying his motion was affirmed. (People v.

McVicker (1940), 37 Cal.App.2d 470 [99 P.2d 1110].) Petitioner’s principal contentions on that appeal were substantially the same as those now advanced, namely, that the Utah conviction and the federal conviction were not in their "actual substance such as to constitute any basis for lawful adjudication of habitual criminality. The District Court of Appeal relied on the following language from People v. Moore (1935), 9 Cal.App.2d 251, 255 [49 P.2d 615], quoted with approval in People v.

Lumbley (1937), 8 Cal.2d 752, 760 [68 P.2d 354] : “We fail to see how the position of defendant in this proceeding [in effect, a petition for writ of error coram nobis] is any different from that of a person who pleads guilty to a crime believing in fact that he was guilty of the same at the time of his plea, when, as a matter of law, the facts could not establish his guilt.

In the latter situation a defendant would have the undoubted right to make a motion to change his plea. [Citations.] If, however, the defendant omits to do so, and the time has expired for the exercise of any of the statutory remedies after judgment, which might be invoked to cure the situation, and the judgment becomes final, there would be no further legal recourse by any form of judicial review.

The same, we believe, is true in this case.” The language quoted from the opinion of the District Court of Appeal can have no application to this habeas corpus proceeding, for that court went on to say (at p. 475 of 37 Cal.App.2d and in accord with intimations in People v.

Lumbley (1937), supra, 8 Cal.2d 752, 755, 762), “If the said two ‘priors’ were improperly invoked . . . then upon the arrival of the time when appellant [petitioner McVickers] would be entitled to release from confinement for the primary offenses, the legality of his continued or prolonged confinement solely because of the prior convictions can be tested on habeas corpus.” Therefore, regardless of whether we now view the above quoted excerpts from the opinion of the District Court of Appeal as being correct or erroneous in law, and irrespective of whether pronouncements in an opinion rendered on an appeal should always be regarded as law of the case, binding in a subsequent habeas corpus proceeding, it appears here that the judgment of the District Court of Appeal was based substantially upon its holding that petitioner, in due time, would be entitled to have “the legality of his prolonged confinement solely because of the prior convictions . . . tested on habeas corpus,” and under such circumstances he certainly is not to be denied relief solely on the ground that the holding by the District Court of Appeal as to procedure was erroneous.

Independently of the holding of the District Court of Appeal we are, however, for reasons hereinafter set forth, satisfied that the remedy of habeas corpus is open to petitioner. The arguments against permitting a collateral attack, by application for habeas corpus, on a determination that the petitioner is an habitual criminal are set forth in Thompson v.

Harris (1944), 107 Utah 99 [152 P.2d 91, 92] (where “the information affirmatively disclosed that the two previous convictions upon which the state would rely to show that Thompson was an habitual criminal were not sufficient to support a conviction under the Habitual Criminal statute”). It is there said that the writ of habeas corpus can be used “to correct jurisdictional errors and to determine whether or not the petitioner had been deprived of any constitutional right. Except in these two respects, errors in proceedings before a trial' court must be corrected by appeal.

One of the basic difficulties inherent in a contrary holding is the question of where to draw the line. Somewhere and sometime there must be, an end to litigation. The writ of habeas corpus must not be used to discover and correct all errors which might creep into a criminal trial. ... We recognize that some errors are more prejudicial to a defendant than are others, but if habeas corpus is to be used to correct error, where can we draw the line? ...

We believe that the only sound line that can be drawn is to restrict the use of the writ of habeas corpus to the correction of jurisdictional errors and to errors so gross as to in effect deprive the defendant of his constitutional substantive or procedural rights.” The courts of this state have uniformly permitted more extensive use of the writ of habeas corpus to review adjudications of habitual criminality than would be possible under thé view of the Utah court quoted above.

We are satisfied, for the reasons hereinafter set forth, that the writ can consistently be made available to a prisoner who has been adjudged an habitual criminal although in truth and fact he is not, without so enlarging its scope as to make it in effect (as suggested in the above quotation) a writ of error to review the correctness of a conviction. It is important to note that petitioner here raises no question as to the validity or correctness of a judgment of conviction.

Sis attach is directed only against a determination of facts on which depend the length of time during which he can be legally imprisoned and the possibility of his being released on parole. The so-called adjudication of habitual criminal status is not and cannot be an element of adjudicated guilt, nor is it, properly speaking, a part of the judgment of conviction. Despite language of some cases (People v. Delany (1874), 49 Cal. 394; People v.

Coleman (1904), 145 Cal. 609, 612 [79 P. 283]) to the contrary, statutes which provide for increased punishment of those who have previously offended do not create specific, aggravated crimes.

Section 644 of the Penal Code does not create a substantive offense, habitual criminality; rather it provides for more severe punishment, proportionate to their persistence in crime, of those who have proved immune to lesser punishment. (24 C.J.S. 1143, § 1958.) That prior convictions are not elements of a substantive offense is necessarily so under the reasoning of the cases which have upheld the constitutionality of

section 644 against the attack that it is ex post facto as applied to convictions suffered prior to its enactment. “In such case, it is the second or subsequent offense that is punished, not the first.” (Cooley on Constitutional Limitations, 8th ed., p. 553, quoted and relied on in In re Rosencrantz (1928), 205 Cal. 534, 540 [271 P. 902], and cases there cited.) Similarly, as to the contention that punishment under a law which provides more severe punishment because of a prior conviction places the defendant twice in jeopardy for the first offense, it is held that “he is not again punished for the first offense, but the punishment for the second is increased.” (People v.

Stanley (1873), 47 Cal. 113, 116 [17 Am.Rep. 401].) That prior convictions are not elements of a substantive offense likewise appears from

section 1158 of the Penal Code, which requires the jury to find separately on the issue of prior convictions, and from such cases as People v. Eppinger (1895), 109 Cal. 294 [41 P. 1037], which holds that a general verdict, “guilty as charged,” must be treated as a finding against defendant as to the basic offense alleged but in favor of defendant as to alleged prior convictions. From the foregoing discussion it follows that formal adjudication that a prisoner is an habitual criminal does not constitute an adjudication of guilt.

It involves merely the determination of certain facts, all of which are matters of record, and, ordinarily, the declaration of a conclusion from such facts. The facts, rather than the conclusion, operate to prolong the prisoner’s confinement and limit his right to parole. Although this court has said that the trial court should in proper cases “formally adjudge” that defendant is an habitual criminal, it has held that such formal adjudication is unnecessary. (In re Boatwright (1932), 216 Cal. 677, 683 [15 P.2d 755] ; People v.

Vaile (1935), 2 Cal.2d 441, 444 [42 P.2d 321] ; see 24 C.J.S. 1174, _§ 1971, subd. b.) It is, therefore, obvious that a determination of habitual criminal status, even though referred to as an adjudication, does not involve the validity or finality of a judgment of conviction, as such, but relates only to the length of the term of imprisonment and the right to parole, and, hence, an attack on the adjudication of habitual criminal status is not an attack on the judgment of conviction.

It is a part.of the philosophy of the indeterminate sentence law and our whole penological system that, within prescribed limits, the length of terms of imprisonment and rights of parole shall be subject to redetermination from time to time. (See Pen. Code, §§ 1168, 3020, 3025, 3040, 3053, 3060, 3065.) The trend of modern theory on the subject is definitely away from attaching to judgments of conviction absolute finality insofar as the length of terms of imprisonment is concerned.

The judgment of conviction, as such, retains full finality but the matter of length of terms of imprisonment and other elements of the penological process relating to punishment, rehabilitation, supervision, etc., are being largely severed from direct, specific, or final control by the judgment of conviction.

It seems, therefore, that, if we are not by established procedural law precluded, it will be more in harmony with the spirit and purpose of our substantive criminal law as it is intended to operate after conviction, to regard an adjudication of habitual criminality as having somewhat less finality and sanctity than a judgment of conviction. It will likewise be more in harmony with the policy of law if we can entertain petitioner’s application on its merits rather than dismiss it on technical grounds.

Since the finding or adjudication as to a former conviction and habitual criminal status is severable from the proceedings and judgment on the primary offense (see 8 Cal.Jur. 646, § 617) no, violence is done to the finality of the judgment of conviction by permitting a collateral attack on the determination as to a prior conviction. The fact of a prior conviction is not ordinarily difficult of proof; it can be shown by certified copies of the indictment or information and the judgment. Service of a term of imprisonment can be shown by prison records.

Nor is the precise extent of that which is res judicata, or the legal effect, of a foreign prior conviction difficult of ascertainment; both can be determined by examination of the pleadings and consideration of the judicially noticed law of the other state in the light also of' the law of this state. The language of

section 668 of the Penal Code and the decisions hereinabove cited denote the limits of inquiry proper either on the trial or on review: whether the prisoner has been “convicted in another state” and served a term of imprisonment therefor in a state prison or a federal penal institution, and whether the essential elements of the offense of which he has been convicted are the same or substantially the same as those required by California law to constitute an offense enumerated in

section 644. Therefore, to permit reexamination of adjudications as to prior convictions on applications for habeas corpus where otherwise proper, does not place upon the courts the burden of considering the uncertain testimony of witnesses as to events long past.

The extent of the growth of the function of habeas corpus collaterally to attack judgments of conviction in this state is illustrated by comparing with recent decisions (e. g., In re Connor (1940), 16 Cal.2d 701, 712 [108 P.2d 10]; In re Bell (1942), 19 Cal.2d 488 [122 P.2d 22], and cases there cited; In re Byrnes (1945), 26 Cal.2d 824, 827 [161 P.2d 376]) the case of Ex parte Max (1872), 44 Cal. 579, 581, which pointed out the “obvious distinction between the office of a writ of error or an appeal, on the one hand, and a writ of habeas corpus upon the other.” Petitioner Max, as it appeared from the judgment roll, was found guilty of a crime which amounted to a misdemeanor; he was adjudged guilty of a felony and sentenced to imprisonment in the state prison; it was held that this was mere error which could not be inquired into on habeas corpus.

In contrast is the declaration in In re Byrnes (1945), supra, at page 827, that “It is well settled that a writ of habeas corpus ordinarily may not be employed as a substitute for an appeal [citation], yet the scope of inquiry in such proceedings has been broadened rather than narrowed [citation], and the writ may be used to present questions of law that cannot otherwise be reviewed or are so important as to justify an extraordinary remedy [citation].” (Italics added.) Likewise, in In re Bell (1942), supra, at page 494, we find the statement, “There are other situations in which habeas corpus is used, not as a test of jurisdiction, but to review a question of law that cannot otherwise be raised or is so important as to render the ordinary procedure inadequate. ’ ’ Corresponding to the development of habeas corpus as a means of attack on a judgment of conviction has been a broadening of the scope of the writ as a means of attack on an adjudication of habitual criminal status.

The eases which have broadened this function of the writ present a logical and chronological line of development, but they do not expressly recognize such development nor do they state grounds for a distinction between the scope of habeas corpus to attack collaterally a judgment of conviction and its scope to attack collaterally an adjudication of habitual criminality.

Without summarizing this line of eases in detail it may be appropriate to note that when the scope of the writ was first defined in this state, with emphasis on the rules that the inquiry was limited to questions of jurisdiction and the validity on its face of the process and that questions of fact could never be retried (Ex parte Bird (1861), 19 Cal. 130; Ex parte Gibson (1867), 31 Cal. 619, 624, 628 [91 Am.Dec. 546] ; Ex parte McCullough (1868), 35 Cal. 97, 101; Ex parte Max (1872), supra, 44 Cal. 579, 581), statutes providing for increased punishment of previous, offenders were not a part of our law.

It is understandable that the courts may have felt somewhat handicapped by tradition and therefore somewhat uncertain as to theory in applying a remedy as ancient as habeas corpus to a situation arising under the comparatively modern habitual criminal and indeterminate sentence laws.

Nevertheless, this court and the District Courts of Appeal have not hesitated to inquire into questions of so-called “mere error” going to the whole basis of the determination when an adjudication of a prior conviction (habitual criminal status) was attacked on habeas corpus. (In re Rosencrantz (1931), 211 Cal. 749 [297 P. 15]; In re Brady (1936), 5 Cal.2d 224, 226 [53 P.2d 945]; People v. McVicker (1940), supra, 37 Cal.App.2d 470, 475; In re Taylor (1944), supra, 64 Cal.

App.2d 47, 50; In re Connell (1945), supra, 68 Cal.App.2d 360; In re Howard (1945), supra, 69 Cal.App.2d 164; In re Thompson (1946), 72 Cal.App.2d 747 [165 P.2d 533].) In People v. Lumbley (1937), supra, 8 Cal.2d 752, 755, 762, it was intimated that the question of the effect of a pardon, shown by evidence outside the record, upon the correctness of an adjudication of prior conviction and service of a term therefor, might be raised on habeas corpus.

Furthermore, it should be noted, in a habeas corpus proceeding we are not by our statute or by recent judicial holdings necessarily confined under all circumstances to that which appears on the face of the record.

Section 1484 of the Penal Code provides that on such proceedings the petitioner may “allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. The court or judge must thereupon proceed in a

summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case 'may require. ...” (Italics added.) Habeas corpus is essentially a collateral attack. (4 Cal.Jur. 1021, §3; 13 Cal.Jur. 217, §3.) It is specifically held in In re Bell (1942), supra, 19 Cal.2d 488, 501, that “A petitioner seeking habeas corpus ... is not confined to the face of the record in attempting to sustain the burden of proving that his conviction was in violation of his constitutional rights.

The courts of both the United States and California have declared that the remedy of habeas corpus permits an examination not only of the actual evidence introduced at petitioner’s trial but of any necessary additional evidence bearing upon the infringement of petitioner’s constitutional rights. [Citations.] This examination is made, not to pass upon the sufficiency of the evidence to support the verdict, but to determine what the verdict actually was, so that the court may decide whether it violates constitutional guaranties.” Again, in In re Connor (1940), supra, 16 Cal.2d 701, 712, the rule was stated: “The scope of inquiry on habeas corpus in this state may, . . . under exceptional circumstances, extend over the entire course of proceedings in the lower courts [citations], and may embrace additional evidence received by this court either directly or under an order of reference. ’ ’ If a judgment of conviction, with its greater historical finality, is upon any ground open to the collateral attack of habeas corpus on evidence dehors the record it would seem that the ancillary adjudication of habitual criminality (requiring merely a consideration of documentary and record evidence) should be vulnerable to the attack of habeas corpus, whether on evidence dehors the record or otherwise, on the ground (as sometimes phrased) that the trial court lacked “jurisdiction” to adjudicate the status where the uncontradicted evidence is, as a matter of law, inadequate to support the adjudication.

Whether the legal ground of the attack be designated as a “lack of jurisdiction” or as a question of law “so important as to justify an extraordinary remedy” the impelling reasons and the conclusion would seem to be the same.

In addition to the objections, hereinabove discussed (that upholding the decisions of the cases which have broadened the historical scope of habeas corpus review might result in a situation where no judgment would be final and habeas corpus would be available to retry all issues of fact on which final judgments of conviction are based), other objections to the use of the writ in eases such as this have been suggested. Our attention is called to People v. Stone (1945), 69 Cal.App.2d 533, 536 [159 P.2d 701] (recently quoted with approval by this court in In re Gilliam (1945), 26 Cal.2d 860, 866 [161 P.2d 793]).

It is there said, “The confession of a prisoner at the bar of his guilt as charged as well as of the truth of the allegation of prior convictions is, in the absence of insane delusions, most satisfactory evidence upon which to convict and will support a judgment that he is an habitual criminal. [Citations.] ” Further, our attention is called to

section 1025 of the Penal Code, which provides that a defendant’s admission of a prior conviction “must, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings. ’ ’ These quotations from case and statute certainly can have no application to a situation like the present, where the fact (the prior conviction) charged and admitted is as a matter of law, upon the face of the pleading, wholly insufficient to form the basis for an adjudication of habitual criminality.

Sections 644 and 668 of the Penal Code contemplate that a defendant shall have been convicted in a judicial proceeding of a crime enumerated in

section 644. All the essentia] facts of his guilt must be res judicata. In applying

section 644 the courts of this state may take cognizance only of what has been lawfully adjudicated. Any other rule would lead to absurd consequences.

If our trial courts could take evidence to prove, and upon that evidence adjudicate for themselves, that a defendant had been convicted in another state of grand theft as defined in our code despite the fact that he had been there charged, tried, and convicted under a statute defining another offense (here, an offense the only adjudicated elements of which amount to petty theft in California), then our courts could also take evidence and decide that the defendant had been convicted in the other state of robbery or burglary or bribery, or any other offense enumerated in

section 644, even though he had never been charged with, placed upon trial for, or adjudged guilty of, any of those offenses in such other state. Respondent relies upon certain language in In re Taylor (1944), supra, 64 Cal.App.2d 47, 51, relating to the presumption of the verity of a judgment. But if the presumption of the verity of a judgment were implicitly relied upon in habeas corpus proceedings then such proceedings could rarely if ever benefit a defendant after conviction. The language referred to actually is not at all in point on the question before us.

The Taylor case was decided adversely to the petitioner because, while his petition purported to show that the prior conviction in North Carolina, the efficacy of which as a basis for habitual criminality adjudication he challenged, was for the theft of tobacco “of the value of one hundred dollars,” the record before the appellate tribunal disclosed that “on the same occasion of the indictment and conviction for the theft of tobacco” of the value of one hundred dollars the same defendant was indicted for and convicted of the offense (committed on the same day as the theft of the tobacco) of “with force and arms” stealing “an automobile of the value of four hundred dollars. ’ ’ Apparently it did not clearly appear what evidence had been before the trial court when the habitual criminal adjudication was made.

The information charged the defendant, in somewhat general terms, with having suffered a prior conviction “for the crime of Larceny, a felony” committed “in Wilson County, North Carolina.” The only presumption the District Court of Appeal indulged in favor of the verity of the judgment was that in the absence of proof to the contrary “the complete record of petitioner’s prior convictions in the State of North Carolina was before the trial court, and that the court in adjudging him to be an habitual criminal did so with due regard to the provisions of

section 644 of the Penal Code.” Actually, that case, far from supporting respondent, sustains petitioner.

With reference to the allegations of the petition therein tending to show that the prior conviction was for the theft only of the tobacco valued at one hundred dollars, the court said (at p. 50 of 64 Cal.App.2d) : “If nothing further was disclosed by the record before us we would feel compelled to grant the writ. ’ ’ But upon the showing that the petitioner had in truth teen convicted on an indictment specifically charging the theft of property “of the value of four hundred dollars” and upon the lack of any showing that such proof had not been made to the trial court, the writ was discharged.

Such ease is obviously materially different from that before us where the only conviction (in Utah) alleged or proved was for theft of property specifically charged to be “of a value exceeding $50.00.” The pertinent averment of the information in this case is that prior to the commission of the alleged substantive offenses petitioner in 1924 “was, in the District Court of the State of Utah . . . convicted of the crime of Grand Larceny, a felony, and . . . served a term of imprisonment therefor.” Since the allegation specifically charges conviction of “Grand Larceny” in Utah it is, of course, obvious that any court in which it 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. The pertinent law of Utah is not a fact outside the record of local conviction, any more than the very California statute upon which the prosecution is based is a fact outside the record. We are required to take judicial notice of the laws of our sister states (Code Civ. Proc., § 1875, subd. (3)). In California grand larceny (theft) is committed “When the money, labor or real or personal property taken is of a value exceeding two hundred dollars” (Pen.

Code, § 487), but in Utah “Grand larceny is committed . . . when the property taken is of a value exceeding $50.00” (Laws of Utah, 1923, p. 138, eh. 67, being the statute in force when petitioner committed the offense of which he was there convicted). 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 property of a value of $50.01, a crime which is not enumerated in

section 644 of the Penal Code. The conclusion above announced is in full accord with the decision of the District Court of Appeal (hearing in this court denied) in People v. Lohr (1938), supra, 28 Cal.App.2d 397, 399, 400, wherein it was expressly held that “It was necessary for the prosecution to charge and prove that the prior convictions were among those set forth in

section 644 in order to adjudge the defendant an habitual criminal” (italics added) and that where the “charge in the information does not designate the

section of the . . . Act upon which defendant was convicted and the record furnishes ... no assistance in this regard” the reviewing (as well as the trial) court “must therefore assume” that defendant suffered the prior conviction for the least offense punishable under the statute. To the same effect is People v. Morrison (1938), 26 Cal.App.2d 616 [80 P.2d 94], The proposition declared is eminently correct. It is in accord with the often stated principle that “the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true

interpretation of words or the 'construction of language used in a statute.” (People v. Ralph (1944), 24 Cal.2d 575, 581 [150 P.2d 401], and cases there cited.) It is, of course, true that after a trial on conflicting evidence and a verdict against a defendant, every reasonable inference of which the evidence admits in favor of the verdict, and, hence, against the defendant, will be assumed by a reviewing court, but we have no such situation now before us. We have only the record to consider.

That record discloses a specific charge of previous conviction of 1 ‘Grand Larceny” in Utah and petitioner’s admission of that charge. By no process of law or reason acceptable to American standards can such admission of defendant be construed to admit more than the charge laid. There was no further proof. The trial court, therefore, was bound to assume, as are we now, that defendant suffered the prior conviction for the least offense punishable under the Utah statute, which is but a misdemeanor under California law.

Therefore, the determination that petitioner is an habitual criminal with three prior convictions is, upon the face of the record, not supported by it. (If we go outside the record here the result is the same.

The information filed in the Utah proceeding, a copy of which is attached to the petition, expressly alleged that the property stolen was of “a value in excess of $50.00.” By the most elementary rules of pleading an adjudication on, or admission of, such charge would establish a value of $50.01 and no more.) It has long been the law, even in regard to a judgment of conviction, that “if it affirmatively appears by the record that the prisoner was tried and sentenced for the commission of

an act which,' under the law, constitutes no crime, the judgment is void and the prisoner should be discharged.” (Ex parte Mirande (1887), 73 Cal. 365, 371. [14 P. 888]; see, also, Ex parte Kearny (1880), 55 Cal. 212, 221.) 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 a misdemeanor and, hence, constitutes no basis for habitual criminal adjudication.

No question of sufficiency or weight of evidence is involved; the facts are not disputed. Upon the undisputed facts it follows inescapably as a matter of law that the Utah prior conviction cannot support habitual criminal adjudication.

In the same sense in which it is said, for example, that the Industrial Accident Commission does not have jurisdiction to award permanent, total disability payments where the evidence without conflict establishes only temporary, partial disability, it may be said here that the trial court was without jurisdiction to adjudicate habitual criminal status on the basis of the Utah conviction as charged in the information and admitted by petitioner.

Petitioner contends that the determination that he was previously convicted of “forgery, a felony,” and served a term of imprisonment therefor is also insufficient as a basis of the adjudication that he is an habitual criminal. This contention probably would have to be sustained if we were confined to matters appearing in the trial court record of conviction. The information, in this regard, charged merely that the defendant (petitioner, here) had been previously “in the United States District Court . . . convicted upon nine counts of the crime of Violation of

Section 218 of the Criminal Code of the United States .. . . and said defendant served a term of imprisonment therefor in the federal prison. ’ ’

Section 218 of the Criminal Code (18 U.S.C.A. § 347) enumerates many prohibited acts some of which, if comparable to any state offense, would amount to no more than misdemeanors but others of which are comparable to the state crime of forgery. We have hereinabove referred to the fact that in habeas corpus proceedings we are not necessarily confined to consideration of matters of record in the trial proceedings. We are satisfied that

section 1484 of the Penal Code in directing the court or judge “to hear such proof as may be produced against such imprisonment or detention, or in favor of the same” (italics added), fully authorizes the reception of evidence dehors the record if such evidence is directed to the proof of an issue which is cognizable in the proceeding. We are further satisfied that the issue as to whether petitioner’s convictions in the federal court were for felonies the essential substance of which is the same or substantially the same as the California crime of forgery (enumerated in

section 644 of the Penal Code), is properly before this court and that the documentary evidence produced by respondent “in favor of” the detention of petitioner may properly be considered by us. From such documentary evidence (certified copies of the indictment and judgment in the federal matter) it appears that petitioner was convicted of nine counts of forging postal money orders.

Section 470 of our Penal Code, which defines forgery, lists as the subjects of forgery “almost every conceivable kind and character of writing.” (People v. Munroe (1893), 100 Cal. 664, 665 [35 P. 326, 38 Am.St.Rep. 323, 24 L.R.A. 33] ; see, also, People v. Turner (1896), 113 Cal. 278, 280 [45 P. 331]; People v. McKenna (1938), 11 Cal. 2d 327, 332-333 [79 P.2d 1065] ; People v. Di Ryana (1908), 8 Cal.App. 333, 336 [96 P. 919]; In re Parker (1943), 57 Cal.App.2d 388, 392 [134 P.2d 302].) In addition to more particularly designated instruments the

section lists such general descriptions as “any transfer or assurance of money, . . . power to receive money, . . . writing obligatory, ... or other contract for money. . . We entertain no doubt that the forgery of a United States postal money order is an offense within

section 470 and, therefore, would be punishable by imprisonment in the state prison (Pen. Code, § 473). It is immaterial that forgery was not one of the offenses enumerated in

section 644 of the Penal Code in 1928, when petitioner committed and was convicted of the forgeries. Petitioner is not being punished for the forgeries but for the primary offenses of violations of the Narcotics Act. (In re Rosencrantz (1928), supra, 205 Cal. 534, 540; People v. Biggs (1937), 9 Cal.2d 508, 512 [71 P.2d 214, 116 A.L.R. 205].) At the time the primary offenses were committed forgery was one of the crimes enumerated in

section 644 of the Penal Code. The determination that petitioner had been previously convicted of forgery was, therefore, proper as a basis for adjudging him an habitual criminal. The correctness of the determination as to the prior conviction of burglary in Nevada is not here attacked. For the reasons above stated it appears 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; since he is not, as such habitual criminal, presently entitled to discharge or to release on parole, the writ is discharged and the petitioner is remanded to custody. Gibson, C. J., Shenk, J., and Carter, J., concurred.