In re CHARLES AUGUSTUS DIXON, on Habeas Corpus, 41 Cal. 2d 756

GIBSON, C. J. After a trial before a jury in the superior court petitioner was convicted of a violation of

section 480 of the Penal Code, which prohibits the making or possessing of dies, plates or other apparatus used in counterfeiting. He was sentenced to San Quentin, where he is now imprisoned. No appeal was taken from the judgment of conviction. Petitioner seeks a writ of habeas corpus and contends, in part, that real evidence used to convict him was obtained by unlawful search and seizure and that his confession, which was received in evidence, was obtained by coercion.

In support of his contentions petitioner makes allegations to the effect that police officers and federal secret service agents illegally searched his home and seized evidence used against him, that he was beaten and threatened, and that his confession was not made voluntarily. These allegations are controverted by the return, which alleges that all the matters complained of by petitioner were urged and considered at his trial in the superior court.

In view of the fact that petitioner did not appeal we must determine whether any of the matters urged by him may nevertheless be appropriately considered in this proceeding.

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. (In re McInturff, 37 Cal.2d 876, 880 [236 P.2d 574] ; In re Connor, 16 Cal.2d 701, 705 [108 P.2d 10] ; see In re James, 38 Cal.2d 302, 309 [240 P.2d 596] ; In re Manchester, 33 Cal.2d 740, 742 [204 P.2d 881] ; In re Byrnes, 26 Cal.2d 824, 827 [161 P.2d 376] ; cf. Brown v.

Allen, 344 U.S. 443 [73 S.Ct. 397, 420-422, 97 L.Ed. 469].) The only explanation given by petitioner for his failure to appeal is that he lost the right because of his ignorance of the law and because of a lack of funds necessary to order a transcript of the record. Petitioner’s failure to appeal cannot be excused upon the basis of his explanation.

He was represented by counsel during all stages of his trial from arraignment through pronouncement of judgment and sentence, and there is no showing that he did not have, or could not obtain, the aid of counsel during the time within which he could have taken an appeal. Although the application for habeas corpus was apparently prepared by petitioner without the aid of an attorney, he is now represented by counsel, who argued on his behalf at the hearing before this court.

No claim has been made, however, that his failure to appeal was due to lack of opportunity to consult an attorney or that he was in any manner deprived of the right to the assistance of an attorney during the time within which he could have appealed from the conviction.

Petitioner has the burden in this proceeding of alleging and proving all facts upon which he relies to overturn the judgment and of giving a satisfactory reason for not resorting to his remedy of appeal. (See In re Swain, 34 Cal.2d 300, 304 [209 P.2d 793] ; In re Manchester, 33 Cal.2d 740, 742 [204 P.2d 881] ; In re Connor, 16 Cal.2d 701, 711 [108 P.2d 10].) For all that appears petitioner may have refused the services of counsel, and, in the absence of allegations to the contrary, he is in no position to assert that he was ignorant of the law.

His allegation as to lack of funds for a transcript raises a false issue and is entirely immaterial, since he would have been entitled to a transcript of the evidence at the expense of the state. (People v. Smith, 34 Cal.2d 449 [211 P.2d 561] ; see 4 Cal.Jur.2d 262.) We must consider whether, regardless of the lack of a satisfactory excuse for the failure to appeal, we may properly pass upon petitioner’s claims relating to forced confession and unlawful search and seizure.

Petitioner argues that a failure to appeal will not prevent a resort to habeas corpus when, as here, fundamental constitutional rights are involved. His contentions, however, depend entirely on his version of what occurred, and, as we shall see, there was ample evidence from which the trial court could have found that there was no violation of his rights.

It is, of course, an established rule that habeas corpus may not be used instead of an appeal to review determinations of fact made upon conflicting evidence after a fair trial. (In re Horowitz, 33 Cal.2d 534, 546 [203 P.2d 513] ; In re Lindley, 29 Cal.2d 709, 723 [177 P.2d 918].) Likewise, the writ is not available to correct errors or irregularities relating to ascertainment of the facts when such errors could and should have been raised by appeal. (Cf.

In re Lindley, 29 Cal.2d 709, 722 [177 P.2d 918] ; In re Porterfield, 28 Cal.2d 91, 99 [168 P.2d 706, 167 A.L.R. 675].) The same principles should apply even though the alleged errors involving factual issues relate to an asserted denial of constitutional rights. (Cf. Brown v. Allen, 344 U.S. 443 [73 S.Ct. 397, 421-422, 97 L.Ed. 469].) It would obviously be improper to permit a collateral attack because of claimed errors in the determination of the facts after expiration of the time for appeal when evidence may have disappeared and witnesses may have become unavailable.

The clerk’s and reporter’s transcripts of the proceedings in the trial court have been made a part of the record herein, and we have examined them to ascertain whether the facts relating to petitioner’s contentions were before that court and whether any error in connection therewith could have been raised on appeal.

The record shows that the issues relating to the confession and the claimed unlawful search and seizure were argued during the trial, that the testimony on these matters was conflicting, and that the evidence would have supported a finding that there was no violation of petitioner’s constitutional rights. According to the testimony and the inferences to be drawn therefrom, two police officers, who were looking for a Mr. Levitt, went to petitioner’s apartment and rang the bell. They identified themselves as police officers when petitioner came to the door, and he invited them to enter.

While one of them was talking to him, the other, standing in an inner doorway and looking into another room, observed some of the equipment assertedly used by petitioner for counterfeiting, including a ten dollar bill taped to a printing frame before a camera. The officers then arrested and handcuffed petitioner, the premises were searched and certain articles were seized.

The • police officers telephoned United States secret service agents, and additional evidence was discovered after the federal agents arrived, but the record shows that such evidence was voluntarily disclosed to the agents by petitioner in response to their questions. The officers and agents denied that petitioner was beaten or threatened, and there was testimony that his confession was given freely and voluntarily and that no force was used upon him except for a slight scuffle when he was handcuffed.

It could be concluded from the evidence that the police officers lawfully entered the apartment and that they thereafter had reasonable cause for believing that petitioner had committed a felony. Hence they could arrest him without a warrant. (Pen. Code, § 836.) Thereafter it was proper for them, as an incident to a lawful arrest, to search the premises and seize articles which they believed were being used by petitioner in the commission of the crime for which he was arrested. (Harris v.

United States, 331 U.S. 145, 151 et seq. [67 S.Ct. 1098, 91 L.Ed. 1399] ; see 79 C.J.S. 795-796.) Similarly, the action of the federal agents in taking possession of the additional evidence discovered after their arrival was proper in view of the showing that such evidence was willingly disclosed to them by petitioner. With regard to his confession, the testimony as to its voluntary character is clearly sufficient.

It is thus apparent from the record as a whole that the matters of which petitioner complains were before the trial court and that there was evidence which would have supported findings that there was no violation of his constitutional rights in connection with his confession or the search and seizure.

Although difficult questions of law might be presented if the facts alleged by petitioner with respect to these matters were accepted, he is not entitled in this proceeding to a consideration of claims which are based upon his version of the conflicting evidence and which could have been, but were not, raised on appeal.

Likewise, petitioner’s contentions that irrelevant evidence was erroneously admitted at his trial and that the prosecution was guilty of misconduct clearly could have been dealt with upon a timely appeal from the judgment of conviction, and such matters are not reviewable in this proceeding. (In re Manchester, 33 Cal.2d 740, 743-744 [204 P.2d 881] ; In re Lindley, 29 Cal.2d 709, 723-724 [177 P.2d 918].) Finally, petitioner contends that

section 480 of the Penal Code, under which he was convicted, is unconstitutional. This contention comes within a recognized exception to the general rule requiring resort to appeal as a prerequisite to the remedy of habeas corpus.

The decisions involving this writ have uniformly passed upon the constitutionality of legislation and, in most instances, have done so as a matter of course without discussion of the propriety of the writ or the availability of an appeal. (See In re Wells, 35 Cal.2d 889, 892-895 [221 P.2d 947] [considering merits of contentions although noting that they could have been, but were not, presented on appeal] ; In re Porterfield, 28 Cal.2d 91, 99 [168 P.2d 706, 167 A.L.R. 675] ; In re Herrera, 23 Cal.2d 206, 208, 214 [143 P.2d 345] [no discussion] ; In re Bell, 19 Cal.2d 488, 492-495 [122 P.2d 22] ; In re Sidebotham, 12 Cal. 2d 434 [85 P.2d 453, 122 A.L.R. 496] [no discussion] : 13 Cal.Jur. 225-226; cf.

In re Leach, 215 Cal. 536, 543-545, 547 [12 P.2d 3] [stating that it is well settled that constitutionality of a law may be raised on habeas corpus].) Petitioner asserts that

section 480 is void because, he argues, the United States Constitution gives Congress the sole power to punish the counterfeiting of federal currency.

Section 8 of

article I of the United States Constitution provides that ‘ ‘ the Congress shall have power. ... To coin money, regulate the value thereof, and of foreign coin. ... To provide for the punishment of counterfeiting the securities and gold coin of the United States.” A state, of course, is not precluded from acting with respect to a particular subject merely because power over that subject has been expressly granted to Congress by the Constitution, and it has been recognized that the same act may be made a crime by both state and federal governments. (California v.

Zook, 336 U.S. 725, 731 [69 S.Ct. 841, 93 L.Ed. 1005] [regulation of interstate commerce] ; United States v. Lanza, 260 U.S. 377, 381-384 [43 S.Ct. 141, 67 L.Ed. 314] [sale of intoxicating liquor] ; People v. Grosofsky, 73 Cal.App.2d 15, 17 [165 P.2d 757] ; see 15 Am.Jur. 68.) Although the cases are not entirely clear, the United States Supreme Court has indicated that, in the absence of federal legislation which occupies the field, state legislatures have authority to prohibit counterfeiting of federal money. (See Sexton v. California, 189 U.S. 319, 322-323 [23 S.Ct. 543, 47 L.Ed. 833] ; United States v.

Arjona, 120 U.S. 479, 487 [7 S.Ct. 628, 30 L.Ed. 728] ; cf. Fox v. State of Ohio, 5 How. (46 U.S.) 410, 432 et seq. [12 L.Ed. 213].) In California the case of People v. White, 34 Cal. 183, 186, sustained a conviction under a statute similar to

section 480 of the Penal Code for knowingly procuring and possessing instruments used in counterfeiting United States gold coin. The court rejected an argument that the statute was contrary to the federal Constitution, stating that the United States Supreme Court had decided the matter adversely to the views advanced by the defendant’s counsel. (See, also, People v.

McDonnell, 80 Cal. 285 [22 P. 190, 13 Am.St.Rep. 159].) Other jurisdictions have reached the same conclusion on the ground that the states have concurrent power with the federal government unless Congress provides for exclusive federal control. (Commonwealth v. Fuller, 8 Met. (Mass.) 313, 314 et seq. [41 Am.Dec. 509] ; Harlan v. People, 1 Doug. (Mich.) 207, 209-212; Stroube v. State, 40 Tex.Crim.Rep. 581 [51 S.W. 357, 358] ; Martin v. State, 18 Tex.App. 224, 225.) There is no merit to petitioner’s contention that the field was occupied by the enactment of

chapter 25 of Title 18 of the United States Code which provides for the punishment of counterfeiting and related crimes. Whether Congress has occupied a particular field depends upon whether it intended to exclude state legislation. (California v.

Zook, 336 U.S. 725, 728-733 [69 S.Ct. 841, 93 L.Ed. 1003].) Title 18, which relates to other federal crimes in addition to counterfeiting, expressly provides that “Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.” (U.S.C.A. § 3231.) Substantially identical provisions in former federal statutes have been held to expressly reserve the jurisdiction of the states to punish counterfeiting. (Ex parte Geisler, 50 F. 411; People v. White, 34 Cal. 183, 186; Iowa v. McPherson, 9 Iowa 53, 55; People v.

Fury, 279 N.Y. 433 [18 N.E.2d 650, 651]; Stroule v. State, 40 Tex. Crim.Rep. 581 [51 S.W. 357, 358] ; see Sexton v. California, 189 U.S. 319, 322 [23 S.Ct. 543, 47 L.Ed. 833] ; Nastasi v. Aderhold, 201 Ga. 237 [39 S.E.2d 403, 405].) The order to show cause is discharged, and the writ is denied. Shenk, J., Edmonds, J., Traynor, J., and Spence, J., concurred.

Seetion 480 of the Penal Code provides: “Every person who makes, or knowingly has in his possession any die, plate, or any apparatus, paper, metal, machine, or other thing whatever, made use of in counterfeiting coin current in this state, or in counterfeiting gold-dust, gold or silver bars, bullion, lumps, pieces, or nuggets, or in counterfeiting bank notes or bills, is punishable by imprisonment in the state prison not less than one nor more than fourteen years; and all such dies, plates, apparatus, paper, metal, or machine, intended for the purpose aforesaid, must be destroyed.”