TOBRINER, J.

In his petition for a writ of habeas corpus, Joe Ray Huddleston (hereinafter referred to as defendant) contends that the trial court improperly considered an invalid prior conviction which, if not taken into account in sentencing, would have rendered him eligible for probation. We have concluded that the evidence demonstrates the invalidity of the prior conviction; we therefore transfer the case back to the sentencing court for a redetermination of sentence.

The District Attorney of the County of Los Angeles in January and February 1961 filed two separate information charging defendant with violation of section 459 of the Penal Code (burglary). In March 1961 defendant pleaded guilty to both charges; the court sentenced him to the state prison for the term prescribed by law (i.e., one to fifteen years). Prior to the imposition of sentence the court upheld the validity of a charged prior felony, robbery, pursuant to a judgment rendered in the Los Angeles Superior Court. The court also held valid another charged prior felony, burglary, based upon a judgment rendered in the Fresno Superior Court, resulting in a commitment of defendant to the California Youth Authority.

Defendant filed a petition for writ of habeas corpus in the Sacramento Superior Court contending that under our decision in In re Woods (1966) 64 Cal.2d 3 [ 48 Cal.Rptr. 689, 409 P.2d 913], he should be resentenced because the court in its original sentencing erroneously considered the felony conviction in the Fresno Superior Court. According to defendant, that conviction cannot stand because at the time of those proceedings he neither obtained representation by counsel nor waived that right. Defendant does not question the validity of the prior Los Angeles robbery conviction.

The Sacramento court ruled that the prior conviction resulting in the commitment to the California Youth Authority was indeed invalid because, even though the 17-year-old defendant "waived" his right to counsel, there "is nothing in the record, nor has any evidence been introduced, to suggest that this was an intelligent, informed waiver." Nevertheless the Sacramento Superior Court refused to remand the case to the County of Los Angeles for resentencing because it "appears clear that the prior convictions were not a factor in the Court's consideration of the application for probation. The Court was concerned, rather, with the fact that petitioner had, after his release on bail, committed another offense and that he was being sentenced on both of those charges. The application for probation was considered and denied on its merits." The court concluded: "It would be a futile gesture to seize upon this technicality and to return petitioner to Los Angeles for a further evaluation of his case by the Superior Court."

To defendant's petition in this court for a writ of habeas corpus the Attorney General posits denial upon the following untenable propositions: (1) Defendant's challenge to the prior conviction comes too late; (2) defendant has failed to allege facts which invalidate the records of the Fresno Superior Court to the effect that he waived his right to counsel; and (3) the sentencing judge rejected probation even though he considered the possibility of defendant's eligibility for probation; the transfer of this case from the Sacramento Superior Court to the sentencing Los Angeles Superior Court would therefore constitute an idle act.

[1] We cannot accept the Attorney General's first argument that defendant has waited an unreasonable time after this court's decisions in In re Woods, supra, 64 Cal.2d 3, In re Luce (1966) 64 Cal.2d 11 [ 48 Cal.Rptr. 694, 409 P.2d 918], and In re Tucker (1966) 64 Cal.2d 15 [ 48 Cal.Rptr. 697, 409 P.2d 921], to challenge the validity of the prior conviction.

We faced a similar argument in In re Caffey (1968) 68 Cal.2d 762, 773 [ 69 Cal.Rptr. 93, 441 P.2d 933]. There we ruled that a defendant could not be expected to raise at the time of his conviction points of law which had not yet been pronounced. "Moreover, to find a waiver in these circumstances would unduly restrict the right to relief from a substantial increase in punishment based on a constitutionally invalid conviction" ( 68 Cal. 2d at p. 773).

We rendered our decisions in Woods, Luce, and Tucker on January 26, 1966. Defendant in the instant case filed his petition for writ of habeas corpus with the Sacramento court sometime during the summer of 1968; the court denied the writ on October 4, 1968. We have established no time limit for the presentation of claims in a petition for habeas corpus; indeed the basic function of habeas corpus is to afford relief which cannot otherwise be procured. The lapse of two and one-half years does not become unreasonable under the present circumstances; in any event, defendant's delay primarily worked to his own disadvantage.

[2] We must reject the Attorney General's second contention that defendant fails to rebut the record of the Fresno court to the effect that he waived counsel in that proceeding. Indeed the superior court on the hearing of the habeas corpus petition rendered the following finding: "A review of the evidence establishes that there had been a waiver of counsel by the petitioner who was then seventeen years of age. There is nothing in the record, nor has any evidence been introduced, to suggest that this was an intelligent, informed waiver. This court is, therefore, prepared to determine, and does determine, that the first of the two prior convictions is invalid for any purpose."

In a candid elucidation of the records of the Fresno proceedings the Chief Deputy District Attorney for the County of Sacramento stated at the habeas corpus proceedings: "I have also Fresno County records in relation to the prior conviction suffered, I believe, in 1949 or '48, and these records do not adequately set forth the situation with respect to waiver of counsel. It is clear the defendant did not have counsel down there. . . . There is a recital in a Minute Order, which was prepared after the time that the defendant . . . appeared . . . without counsel . . . and that recital sets forth that the defendant waived counsel; but I am satisfied, your Honor, that on the basis of the records available in Fresno — they apprise me that these are all the records available in that case — that from the records anyhow, we can't make a sufficient showing that he did waive."

Moreover, the defendant testified at the habeas corpus hearing that he was not represented by counsel in the Fresno proceedings, that he did not waive counsel, that counsel was not offered to him, and that he did not recall advising the court that he did not wish counsel "because I think I would have accepted an attorney if it was offered to me." The prosecution did not attempt to contradict defendant's testimony.

Thus, although the Attorney General in his return disputes the denial of a waiver of counsel in defendant's present petition, the admissions of the district attorney's representative irrefutably support defendant. The evidence sufficiently upholds the findings in the habeas corpus proceedings that defendant did not effectively waive his right to counsel. The prior conviction must therefore be adjudged invalid.

[3] Finally, we consider the Attorney General's third contention that the sentencing court in fact considered and rejected the possibility of probation for defendant; that therefore a transfer of the case to the sentencing court at this time would be an idle act.

The provisions of paragraph 4 of section 1203 of the Penal Code as it existed in 1961 absolutely precluded the granting of probation if the defendant suffered two prior felony convictions. In view of the two charged priors in this case, including the Fresno conviction, the sentencing judge, therefore, could not have considered probation for defendant regardless of the existence of, or recommendation of, a probation report. The possibility, however, remote, that the sentencing judge might have granted probation became irrelevant in view of the prohibitory provisions of paragraph 4. Contrary to the contentions of the Attorney General, the sentencing judge could not have considered probation for defendant; the court's rejection of probation for defendant, therefore, could not have rested on a judgment of the merits of an application for probation.

In any event, we ruled in In re Caffey, supra, 68 Cal.2d 762, 765, that if new findings disclose that the sentencing court considered an invalid prior conviction in fixing the original sentence, that court bears the obligation of resentencing. (See In re Haro (1969) ante, pp. 1021, 1025 [ 80 Cal.Rptr. 588, 458 P.2d 500]; In re Dabney (1969) ante, pp. 1, 5 [ 76 Cal.Rptr. 636, 452 P.2d 924] (in which case we ruled that in view of the determination that defendant had been sentenced on the basis of a prior invalid narcotics conviction the defendant "was entitled to be considered for probation and, if probation were denied, to sentencing as an offender without a previous narcotics conviction"); In re Pfeiffer (1968) 264 Cal.App.2d 470 [ 70 Cal.Rptr. 831].) The Sacramento court is not entitled to divine the ruling which the sentencing court would have reached if a different set of facts had been presented to it; nor should this court superimpose its judgment upon that of the sentencing court. The defendant is entitled to a completely new and unbiased evaluation of his application for probation based upon all the facts of the case, including the fact of a single prior felony conviction.

Thus, in sum, we pass here only upon the question whether defendant obtained the benefit of a proper probation hearing. Although the issue frames no great question of law, it crucially affects this individual defendant; he is entitled to a hearing in which the court can exercise its judgment upon the basis of a sound presentation of his legal status. Unfortunately, in view of the erroneous concept of the legality of defendant's prior conviction, that clear and certain legal premise was missing here. To postulate that the sentencing judge passed on the merits of the application basing his decision upon paragraph 3 of Penal Code section 1203, which is not pertinent, invites pure speculation. We conclude that the proper and wise disposition of the matter is to afford defendant a hearing on probation premised upon a sure foundation of his legal status.

The writ is granted and defendant is remanded to the custody of the Superior Court of Los Angeles County for resentencing in accordance with the views expressed herein.

Traynor, C.J., Peters, J., and Sullivan, J., concurred.