Amos Marshall Arketa v. Lawrence E. Wilson

Habeas corpus; appeal from denial of the writ without a hearing. In 1964 Arketa was convicted in California Superior Court on two counts charging burglary in the second degree. (Cal.Pen. Code §§ 459, 460, subd. 2.) He was given concurrent sentences for the term prescribed by law, 2 to 15 years, Cal.Pen. Code §§ 461, 3024(c). He was charged with and found to have suffered two prior California burglary convictions, one in 1957 and one in 1961. He is serving, concurrently, both the 1961 and the 1964 sentences. The two prior sentences affected his 1964 conviction, but not by increasing the term of imprisonment that could be imposed. He was not found to be an habitual criminal under Cal.Pen. Code § 644. The only effect of the priors was to make him ineligible for probation. (Cal.Pen.Code § 1203.)

In this proceeding, Arketa does not attack the 1964 conviction. He asserts that the 1961 conviction is void because evidence obtained in an unconstitutional search was used against him. He also says that he therefore should have been, and, if the 1961 sentence be set aside, will be, eligible for probation under section 1203, Cal.Pen.Code. It does not follow that he would get probation. Under…