In re CHARLES BANDMANN, JR. on Habeas Corpus
Crim. No. 6305
In Bank. Supreme Court of California
Dec. 23, 1958
CARTER, J.- This is an application for a writ of habeas corpus by Charles Bandmann, Jr., an inmate of San Quentin, who, after a plea of guilty, of attempted abortion, was sentenced to state prison “for the term prescribed by law.” In response to such application we issued an order to show cause why a writ of habeas corpus should not be granted.
Petitioner was committed to prison on February 18, 1957, and has now served 18 months. Petitioner contends that his maximum sentence should have been one year in the county jail.
The substantive offense of abortion “is punishable by imprisonment in the state prison not less than two nor more than five years” (
“1. [Offense punishable by more than five years in state
“2. [Offense punishable by less than five years in state prison.] If the offense so attempted is punishable by imprisonment in the state prison for any term less than five years,† the person guilty of such attempt is punishable by imprisonment in the county jail for not more than one year.”
The only question involved here is whether subdivision 1 or subdivision 2 of
This court held in In re Lee, 177 Cal. 690, 693 [171 P. 958], that “It has uniformly been held that the indeterminate sentence is in legal effect a sentence for the maximum term. It is on this basis that such sentences have been held to be certain and definite, and therefore not void for uncertainty.” It follows from this that the maximum sentence for the crime of abortion is five years, and the punishment for an attempt to commit abortion would be two*†
This court held in Los Angeles City School Dist. v. Odell, 200 Cal. 637, 641 [254 P. 570], that “The authorities are numerous to the effect that the title of an act may be relied on in ascertaining the intention of the legislature, where the act itself is ambiguous; but the title ‘cannot be used for the purpose of restraining or controlling any positive provision of the act.’ (Flynn v. Abbott, 16 Cal. 359, 366; Barnes v. Jones, 51 Cal. 303, 306; In the Matter of the Boston M. & M. Co., 51 Cal. 624, 626.) There is no ambiguity in the amendatory act of 1919, and its title may not, therefore, be employed to control the plain provisions thereof.” (See also Heron v. Riley, 209 Cal. 507, 510, 511 [289 P. 160].) It is apparent from the body of subdivision 1 of
In disregarding the title of subdivision 1 of section
We also said that “In cases of conflict between the provisions of the same statute, those susceptible of only one meaning will control those susceptible of two if the statute can thereby be made harmonious.” If we were to construe the two subdivisions of
Petitioner argues that subdivision 2 of
In view of the clear wording found in the body of subdivisions 1 and 2 of
Petitioner relies on Ex parte Hope, 59 Cal. 423, 424-425, in support of his argument that “nor more than five years” is, in reality, a provision that the penalty is less than five years. In the Hope case the petitioner had been convicted of attempted first degree burglary and was sentenced to serve seven and one-half years which the court noted was “one half of the longest term of imprisonment prescribed for a conviction of the offense so attempted.” Petitioner there contended that subdivision 2 of
Petitioner also relies on In re Bellis, 75 Cal. App. 146, 147 [241 P. 910]. The petitioner there was found guilty of attempted second degree burglary. The court, after noting that burglary in the first degree was punishable by not less than five years and that second degree burglary was punishable by not less than one nor more than 15 years, held: “An indeterminate sentence is in legal effect a sentence for the maximum term. (In re Lee, 177 Cal. 690 [171 P. 958].) The crime of which petitioner pleaded guilty being punishable for not less than one nor more than 15 years, one-half of the longest term is greater than five years and the crime is, therefore, punishable by imprisonment in the state prison.” Petitioner‘s argument that the Bellis case means that the measuring stick is one-half of the maximum sentence for the substantive crime for the purpose of applying the provisions of
Petitioner also contends that he has been denied due process of law and the equal protection of the laws because of the “vagueness” of the provisions of
Petitioner contends that he was improperly sentenced to prison under
It has been brought to our attention that petitioner was released on parole to Charles R. Bradley, a Sonoma County parole officer on or about August 18, 1958, and that he is no longer in actual physical custody in San Quentin. As a prisoner upon parole, petitioner is constructively a prisoner
For the reasons hereinabove set forth, the order to show cause heretofore issued is discharged, the writ of habeas corpus is denied and the petitioner remanded.
Gibson, C. J., Shenk, J., Spence, J., and McComb, J., concurred.
SCHAUER, J., Dissenting.- It is the established rule that “When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.” (People v. Stuart (1956), 47 Cal.2d 167, 175 [7] [302 P.2d 5, 55 A.L.R.2d 705]; People v. Smith (1955), 44 Cal.2d 77, 79 [2] [279 P.2d 33]; In re Bramble (1947), 31 Cal.2d 43, 51 [6, 7] [187 P.2d 411]; In re McVickers (1946), 29 Cal.2d 264, 278 [176 P.2d 40]; People v. Valentine (1946), 28 Cal.2d 121, 143 [20] [169 P.2d 1]; People v. Ralph (1944), 24 Cal.2d 575, 581 [2] [150 P.2d 401].) As further declared in People v. Ralph (1944), supra, “criminal statutes will not be built up ‘by judicial grafting upon legislation. . . . [I]t is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.’ [Citations.]”
Applying these principles in this case, any ambiguity in the statute here involved should be resolved in petitioner‘s favor, and the holding should be that he has already served the full maximum term for his offense of attempted abortion.
So far as here material the pertinent statute,
This view, I think, gives rational effect to the differentiation expressed in the statute, and also follows the rule of construction in favor of the accused. The offense here attempted¹ obviously “is punishable by imprisonment in the state prison for any [some] term less than five years,” but it is not punishable “for five years, or more.” (Italics added.) That is, it is not punishable for some or any term which is of more than five years’ duration. Thus the attempt to commit the offense plainly does not fall within the class of attempts which carry the more severe penalty that results where the offense attempted is punishable by imprisonment for more than five years.
It follows that the crime to which petitioner pleaded guilty (attempted abortion) does fall within the class which bears the lesser punishment of “imprisonment in the county jail for not more than one year” (
Traynor, J., concurred.
Petitioner‘s application for a rehearing was denied January 21, 1959. Traynor, J., and Schauer, J., were of the opinion that the application should be granted.