People v. Cowen

YORK, J.

This is an appeal from an order of the trial court denying a motion made by appellant pursuant to section 669 of the Penal Code to determine the running of sentence. Appellant was charged, tried and convicted upon two informations, the first containing a single count of attempted robbery; the second containing two counts, one of rape and one of robbery. Judgment was pronounced and sentence imposed for all three counts on the 19th day of May, 1930. The judgments on the rape and robbery counts were ordered to run concurrently, but nothing is said in the judgment on the charge of attempted robbery as to how it should run with reference to the other two. It was also found that appellant had been convicted of a prior felony and had served a term of imprisonment therefor.

Appellant contends, because the state board of prison directors has seen fit to treat the judgment in the case of attempted robbery as being a judgment to follow after the expiration of the life term imposed on the robbery charge, hence resulting in a difference of five years in the length of his imprisonment, that he has the right to a determination by the court as to how the judgment in the attempted robbery case shall run. In 'support of his contention he argues that, since he is serving a term of less than for life for the crime of rape, which term runs concurrently and is merged with the life sentence for the crime of robbery, the greatest possible term he may serve is for life, and it necessarily follows that the judgment on the charge of attempted robbery should run concurrently, he claiming that it is a legal absurdity to hold that he should serve such term consecutively to a life term.

At the time of appellant’s conviction, section 669 of the Penal Code read as follows: “When any person is convicted

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of two or more crimes the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be; provided, that in exceptional cases the judgment, in the discretion of the court, may direct that such terms of imprisonment, or any of them, shall run concurrently.” (Stats. 1927, p. 1056.)