In Re Schneider

SHENK, J.

On September 14, 1938, the petitioner was sentenced to serve the period of time prescribed by law in the State Prison at Folsom for violation of section 476a of

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the Penal Code. He was committed on February 15, 1940. ■The Board of Prison Terms and Paroles fixed his term of imprisonment at ten years (last three and one-half years on parole), based on the crime of “issuing cheek without sufficient funds

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(7) Priors”. The sentence so fixed with credits would expire on May 23, 1946. The prisoner was released on parole on November 23, 1942. He violated the condition and his parole was revoked in May 1943. In June 1943 he filed the present petition whereby he seeks his discharge on the ground that he has served the full period of time prescribed by law.

The petition raises the question whether the board should have treated the petitioner as a first offender. The record of conviction shows that the information as amended accused the petitioner of the violation of said section 476a and seven prior convictions of a felony. The statement of the historical facts in the arraignment for judgment and sentence recited the accusations, the plea of not guilty, the denial of the seven prior convictions, the fact of trial, the verdicts of the jury as “ ‘Guilty as charged’—seven prior convictions of a felony, true, ’ ’ the denial of various motions, the inquiry by the court if he had any legal cause to show why judgment should not be pronounced against him and Schneider’s reply that he had none. The judgment and sentence followed: “And no sufficient cause being shown or appearing to the court, thereupon the court renders its judgment: That whereas the said Defendant Andrew Schneider having been duly convicted in this Court of the crime of Felony, Violating section 476a of the Penal Code, It is therefore ordered, adjudged and decreed that the said defendant Andrew Schneider be punished by imprisonment in the State Prison of the State of California ... at Folsom, California.” The petitioner prosecuted an appeal from the judgment, on the ground among others that the evidence did not support the verdict of guilty on the charge of violation of said section 476a nor the finding that the charge of seven prior convictions was true. The judgment was affirmed