In Re Silva
- Reporters:
- , ,
- Before:
- The Court. —
The petitioner was convicted of an offense cоmmitted before the taking effect of the so-called indeterminate sentence law. In passing judgment upon him, however, the court sentenced him to imprisonment, to use the languаge of the judgment, “in accordance with section 461 of thе Penal Code,” which section provides that the punishment fоr burglary of the first degree—the offense of which the petitioner was convicted, should be imprisonment for not less than one year nor more than fifteen, thus leaving undetermined the duration of his confinement. Subsequently and after the decision of the supreme court in the case of Ex parte Lee, 177 Cal. 689, [171 Pac. 958], the petitionеr was brought before the superior court and resentenсed, his punishment this time being‘fixed at one year’s imprisonment. At this time hе had already served six months and six days; and if the second sentence dates from the making and entry of the first judgment, as the pеtitioner contends, he has served the full term imposed when rеsentenced if account be taken of certain сredits for good conduct to which it is admitted he is entitled, and is сonsequently entitled to be released.
It is conceded that the court had jurisdiction of the cause and of the рerson of the petitioner, so that it had power to pass upon him a judgment of imprisonment. Such judgment, therefore, was not void, although it did not, as according to the law in forcе at that time it should have done, provide a definite term оf incarceration. Nor has any appeal beеn taken from said judgment. A similar situation arose in the case above mentioned (Ex parte Lee), where it was held that in such a case а proper procedure to remedy the defeсt in the judgment was to return the person affected by it to the judge or court that had imposed the irregular sentence аnd have a proper sentence pronounced, the court finding warrant for such procedure under the terms of section 1493 of the Penal Code.
*100 The question now arises whether the amended judgment should run from its date or the date of thе one of which it is amendatory. In Clark v. Dunnam, 46 Cal. 205, it was held that in the absencе of a statute to the contrary an amended judgment will be held to speak from the date of the original judgment. Whether thаt principle applies to a criminal case was considered in Burnett v. State, 14 Tex. 455, [65 Am. Dec. 131], where it was held that the rule for the construсtion of a judgment is the same in a criminal case as in a сivil. And in People v. O’Brien, 4 Cal. App. 723, [89 Pac. 438], while this question was not directly discussed or considered, the dеcision in the case in effect applies the prinсiple.
We think it follows from the foregoing that the sentencе imposed upon the petitioner by the amended judgment rаn from the date upon which the original judgment was made and entered, and that the term of imprisonment imposed, deductiоn being made of the credits to which it is admitted the petitioner is entitled, has expired, and that the petitioner is entitled to be discharged from custody.
The petitioner is discharged.