In Re Bertrand

ADAMS, P. J.

On April 27, 1938, an information was filed in the Superior Court of the City and County of San Francisco charging petitioner herein with a violation of section 1, chapter 339, of the Statutes of 1923, in that on or about April 11, 1938, he did, in said city and county of San Francisco, “wilfully, unlawfully, knowingly and feloniously possess an instrument and weapon of the kind commonly known and designated as a blackjack.” Said information also alleged that on or about July 18, 1920, the said Edward Bertrand had been “received at San Quentin Penitentiary, having been convicted in the County of Imperial, State of California, of the crime of felony, to wit: Forgery, ’ ’ that on December 9, 1921, defendant “was received at” San Quentin having been convicted of burglary in San Diego, that on December 19, 1924, he “was received” at the Idaho State Penitentiary having been convicted in Idaho of grand larceny, and that on March 2, 1934, he “was received at” Folsom, after conviction in Los Angeles County of “Petty Theft with Prior Convictions. ’ ’

There was no allegation that defendant had served terms of imprisonment on any of the prior convictions. On arraignment defendant pleaded not guilty of the offense charged, but admitted that he had suffered the prior convictions ‘‘ charged in the information.” He was tried and convicted of the offense charged, and judgment was thereafter rendered which, after reciting that defendant had admitted having suffered the prior convictions, provided as follows: “That whereas, the said Defendant Edward Bertrand having been duly convicted in this Court of the crime of Felony to-wit: Violating Section 1, Chapter 339, Statutes of 1923, and four prior con

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victions of a Felony—It is therefore ordered, adjudged and decreed that the said Defendant Edward Bertrand he punished by imprisonment in the State Prison of the State of California, at Folsom.”

He was received at the State Prison at Folsom on June 22, 1938, and on January 9, 1940, the Board of Prison Terms and Paroles fixed his term at “Life, in accordance with Penal Code sec. 644, subdivision 2.” He now asks for his discharge on the ground that he has served the maximum term for the crime of which he was convicted, alleging that the information did not allege that he had served terms of imprisonment upon the prior convictions, that his admission as to said prior convictions was only an admission that he had suffered said prior convictions and not that he had served terms of imprisonment thereon, that no proof was made to the court that he had ever served such terms of imprisonment, that the trial court did not adjudge him to be an habitual criminal, arid that the Board of Prison Terms and Paroles acted without authority of law in fixing his term at life imprisonment.