20 P.2d 333 | Cal. | 1933
Application for a writ of habeas corpus.
Under an information filed by the district attorney of San Joaquin County, petitioner was charged with and convicted of a felony, to wit, driving an automobile without the consent of the owner in violation of section 146 of the California Vehicle Act. Petitioner was also charged with and plead guilty to two prior felony convictions. He was sentenced to imprisonment in Folsom state prison for the indeterminate period prescribed by law, being received at the prison on June 15, 1928. Thereafter the prison board fixed his definite term of incarceration at ten years. Subsequently and on May 14, 1932, the prison board, recognizing that it had exceeded its jurisdiction in so fixing petitioner's sentence, rescinded its order and fixed his term of imprisonment at seven years.
Citing sections
Section 146 of the California Vehicle Act, for the violation of which petitioner now stands convicted, reads in part: "Any person who shall drive a vehicle not his own, without the consent of the owner thereof, and in the absence of the owner, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, shall be deemed guilty of a felony."
The penalty for such felony is prescribed by section
The maximum penalty for a violation of section 146 of the California Vehicle Act is therefore five years. In view of this, petitioner cites us to section
It is petitioner's theory that the language of the code section last above quoted is controlling, and that since five years of imprisonment is prescribed by section
In opposition to this contention, the attorney-general points out that subdivision 1 of section
[1] In view of the conclusion we have reached, we find it unnecessary to pass on the merits of these respective contentions, for, even if it be assumed that section
The writ is granted and the petitioner is discharged.
Curtis, J., Preston, J., Langdon, J., Shenk, J., Seawell, J., and Thompson, J., concurred.