In Re Wolfson ( 1947 )

SPENCE, J.

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 still adhere, however, to the views expressed in my dissenting opinions in In re McVickers, 29 Cal.2d 264, 281 [176 P.2d 40], and In re Seeley, 29 Cal.2d 294, 303 [176 P.2d 24], and base my concurrence here upon those views rather than upon the views stated in the majority opinion. As stated in the dissenting opinion in In re Seeley, supra, at page 317,1 believe that the scope of review in this proceeding on habeas corpus, where it is sought to attack the validity of the judgment adjudicating petitioner to be an habitual criminal, “extends only to the question of the jurisdiction of the trial court to make the habitual criminal adjudication; that the inquiry does not extend beyond the face of the record in the criminal proceeding in which such adjudication was made; and that if it does not affirmatively appear from the face of such record that the trial court was without jurisdiction to make such adjudication, then the habitual criminal adjudication should not be nullified.”

Here the judgment adjudicating petitioner to be an habitual criminal has long since become final. No lack of jurisdiction to make such adjudication appears upon the face of the record in the criminal proceeding in which such adjudication was made. If the review in this proceeding is confined to its proper scope, it is at once apparent that petitioner is not entitled to his release.

Edmonds, J., and Traynor, J., concurred.