Sheffield v. People

WOOD, J.

An information was filed against petitioner in the superior court charging her with the crime of assault with a deadly weapon. To this charge she entered a plea of guilty, and on August 26, 1936, the court sentenced her to serve a term of six months in the county jail. The court further ordered that all of said sentence be suspended except five days. On September 4, 1936, the following order was entered: "It appearing that on August 26, 1936, defendant had served approximately fifty-five days in the county jail, it is now ordered and effective

nunc pro tunc

as of August 26, 1936, that defendant serve five days in the county jail.” Thereafter petitioner applied for and obtained a writ of

habeas corpus

from the superior court, and upon the hearing thereof the court made the following order: "Writ of

habeas corpus

is granted and defendant is

ordered

released forthwith.” Thereupon the district attorney announced in open court that he appealed to the District Court of Appeal from the last-mentioned order.

The trial court was without jurisdiction to grant probation to the defendant upon her plea of guilty to the offense charged. It is provided in section 1203 of the Penal Code that probation shall not be granted "to a defendant who used or attempted to use a deadly weapon in connection with the perpetration of the crime of which he was convicted.”

[179]

The order suspending the major part of the sentence was equivalent to placing defendant upon probation.

(In re Herron,

217 Cal. 400 [19 Pac. (2d) 4].) That part of the sentence providing for suspension of all but five days was therefore a nullity, leaving the sentence valid for the full period of six months.

The attempt of the court to give credit to the defendant for time actually served in jail prior to the plea of guilty was ineffective. In such circumstances the court was without authority to deduct from the sentence the time theretofore served.