In Re Otto

257 P. 880 | Cal. Ct. App. | 1927

THE COURT.

[1] The petitioner was received into the state prison February 7, 1913, under sentence of seven years each on two charges of burglary of the first degree, the terms to run consecutively. July 25, 1917, he escaped from the prison, but was later returned thereto. He was thereafter tried in the superior court of Marin County and convicted of the crime of so escaping. He was thereupon sentenced by said court to imprisonment in the state prison "for the term of indeterminate sentence as provided in section 1168 of the Penal Code, said term to commence at expiration of present sentence." The indeterminate sentence law (Stats. 1917, p. 665) did not go into effect until July 27, 1917, two days after the petitioner's escape from the prison. Under the authority of In re Lee, 177 Cal. 690 [171 P. 958], and numerous subsequent decisions, the sentence is void. The terms for which the petitioner was sentenced on the charges of burglary have expired and he is now imprisoned under the sentence upon the charge of escaping. The other grounds upon which petitioner asks to be released are without merit.

It is ordered that the warden of the state prison at Folsom deliver the petitioner to the sheriff of the county of Marin, to whose custody he is remanded, for judgment by the superior court upon the conviction.