176 P. 692 | Cal. Ct. App. | 1918
The petitioner filed a petition for a writ of habeas corpus, seeking thereby to be discharged from the custody of the warden of San Quentin state prison. From the petition and the return thereto it appears that heretofore an information was filed in the superior court of San Diego County charging the petitioner with the crime of robbery, alleged to have been committed on the fourteenth day of March, 1917. The petitioner pleaded guilty to the crime of grand larceny; October 4, 1917, he was sentenced to "imprisonment in a state prison of the state of California for the term prescribed by law"; he was received at the prison October 6, 1917. Later, on the motion of the district attorney of San Diego, the petitioner was taken back to San Diego, and on May 13, 1918, he was sentenced to "imprisonment in the state prison of the state of California at San Quentin for the term of one (1) year"; and it is admitted that he has earned his credits under section 1588 of the Penal Code.
Under these facts and the law applicable thereto, is the petitioner entitled to be discharged?
The crime alleged against the petitioner was committed before July 27, 1917, the date upon which the indeterminate sentence law took effect, and as to him it is an ex post facto law and not applicable. He should have been sentenced in the first instance under the laws in effect when the crime was committed. (Ex parte Lee,
It is a common statement that a judgment is not void if the court pronouncing it has jurisdiction of the defendant and of the offense charged. (Ex parte Gibson,
In the case before us the prisoner had served nine months when he was taken back for resentence. Such resentence was, under the last authorities cited, a void act.
Finally, the question remains whether this court should apply the rule in Ex parte Lee, supra, and remand for a valid judgment to be entered. We think not. The facts are different from the facts in Lee's case. Lee had served a very short time when he applied. This petitioner has served over a year. On October 4, 1917, the petitioner was in effect sentenced for not less than one year nor more than ten. On May 13, 1918, for the same offense the trial court again stated its mind and fixed the punishment at one year which, allowing credits, means ten months. But the petitioner has now served over twelve months. It is the duty of this court to "dispose of such party as the justice of the case may require." (Pen. Code, sec. 1484; In reBonner,
Lennon, P. J., and Beasly, J., pro tem., concurred.