In Re Leypoldt

TUTTLE, J.

Petitioner plead guilty, in the justice’s court, to a charge of petty theft, and on December 20, 1938, was sentenced to serve six months in the county jail. He was committed, and started to serve such sentence. On April 8th, he applied to the Superior Court of Stanislaus County for a writ of

habeas corpus,

alleging that his sentence was void, for the reason that it was mandatory upon the justice’s court to sentence him to imprisonment in the county road camp, under the provisions of Statutes of 1921, page 1615. Such is clearly the law and both the. People and petitioner take that position.

(Ex parte Moon Fook,

72 Cal. 10 [12 Pac. 803].) At the hearing before the superior court, it was decided that the sentence was void. The writ was discharged, and petitioner remanded to the justice’s court for resentence. He appeared before the latter court, and on April 14, 1939, was sentenced to imprisonment for three months in the county road camp, under the provisions of the statute mentioned above.

A writ of

habeas corpus

was issued out of this court, it now being the contention of petitioner that he is unlawfully restrained of his liberty, for the reason that

both

of said sentences are void. The first sentence, as we have stated, is admittedly void. As to the second, it is contended by petitioner that, while the right to resentence exists ordinarily under such circumstances, nevertheless, it cannot be exercised if there is an unreasonable delay between the time of the first sentence and the second. In this case the interval was

[520]

some four months. The ease of

Ex parte Gilmore,

71 Cal. 624 [12 Pac. 800], appears to hold that the authority to resentenee must be exercised within a reasonable time. We are inclined to the view that this refers to a reasonable time after the error in the first sentence was brought to the attention of the district attorney or other prosecuting officer. We believe, however, that there is another factor which should govern cases of this character. The extreme length of imprisonment for this offense is fixed by the Penal Code at six months. (Pen. Code, sec. 490.) The original sentence would have expired June 20, 1939, in the absence of credits for good behavior. On April 14th, the second sentence of three months was imposed, and ordinarily this would expire July 14th. Petitioner has, during all of this time, and since December 20, 1938, been imprisoned in the county jail. It is provided in section 14 of the statute cited above, that ‘ ‘ any industrial farm or industrial road camp established under the provisions of this act shall be considered a