In re Sanchez

Petitioner seeks a writ of habeas corpus to relieve him of the partial restraint imposed by a finding of prior felony conviction contained in the abstract of judgment.

On December 7, 1976, in Orange County Superior Court, petitioner pleaded guilty to sale of heroin (Health & Saf. Code, § 11352) and admitted a prior felony conviction. (Orange County Super. Ct. No. 36189.) In the instant proceeding, petitioner complains he was not properly advised of and did not expressly waive his constitutional rights before admitting the prior conviction. (In re Yurko (1974) 10 Cal.3d 857, 860, 865 [ 112 Cal.Rptr. 513 , 519 P.2d 561 ].) The Attorney General properly concedes the lack of proper advisement and acknowledges that the finding of prior conviction must therefore be stricken. (In re Yurko, supra, 10 Cal.3d at p. 864 .)

Accordingly, we order the finding stricken. The allegation in the information of prior felony conviction, however, now stands unadjudicated. Petitioner may therefore be returned to Orange County Superior Court on order of that court for further proceedings on the allegation of prior conviction, if the court be so advised. (In re McCoy (1948) 32 Cal.2d 73, 77 […