People v. Collins

WILSON, J.

By an information filed on August 30, 1945, defendant was charged with felonies in three counts—two separate abortions and murder. He was also charged with having been previously convicted on June 25, 1934, of the crime of abortion. (See

People

v.

Collins,

4 Cal.App.2d 86 [40 P.2d 542].) He pleaded not guilty to each of the three counts and admitted the prior conviction. The jury found him guilty of all the crimes charged and found the crime of murder to be of the second degree. His motion for a new trial was denied and he was sentenced to the state prison for the term

[781]

prescribed by law as to each count, the sentences to run consecutively. On his appeal the judgments and orders denying motions for a new trial were affirmed.

(People

v.

Collins,

80 Cal.App.2d 526 [182 P.2d 585].)

On March 30, 1950, defendant filed a motion to vacate the judgment and sentence and to resentence him so that all three counts would run concurrently. His motion was denied and he has appealed from the order.

Defendant’s contention is based on the provisions of section 669 of the Penal Code. He maintains that his sentence on the charge of murder in the second degree is for life and therefore the terms of his imprisonment must run concurrently.

Section 190 of the Penal Code provides that “every person guilty of murder in the second degree is punishable by imprisonment in the state prison from five years to life; ...” Section 669 provides that when a person is convicted of two or more crimes the second or other subsequent judgment shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently, or whether the imprisonment upon the second or other subsequent conviction shall commence at the termination of the first term of imprisonment; “provided, however, if the punishment for any of said crimes is expressly prescribed to be life imprisonment, whether with or without possibility of parole, then the terms of imprisonment on the other conviction, whether prior or subsequent, shall be merged and run concurrently with such life term.”