People v. Flanagan

TYLER, P. J.

Appellants were charged with violations of the Juvenile Court Law in an indictment presented by the grand jury of the city and county of San Francisco. The indictment contained five counts. Appellants pleaded not guilty to the charges, but later at the trial withdrew their former pleas of not guilty as to counts I and III and as to those two counts they plead guilty. Counts II, IV and V were dismissed. The court thereupon sentenced appellants to imprisonment in the county jail for the term of one year on each count, the sentences to run consecutively.

[215]

By section 19a of the Penal Code, which was passed in 1933, it is provided in substance that in no case shall any person sentenced to confinement in a county or city jail on conviction of misdemeanor, or as a condition of probation, or for any reason, be committed for a period in excess of one year. It is the contention of appellants that by reason of this section the judgment of the court, sentencing them to imprisonment in the county jail for one year on each count, the sentences to run consecutively, should be reversed. In support of this claim we are cited to the ease of

In re Buchanan,

4 Cal. App. (2d) 269 [40 Pac. (2d) 935], Division Two, Second District Court of Appeal. That case was one on

habeas corpus,

where the applicant sought his release for the reason that he was being held upon sentences under three counts of an information charging the petitioner with the issuance of checks without sufficient funds. He had been sentenced to one year on each count, the sentences to run consecutively, and the same contention was made as is here relied upon. The court held that as petitioner had not been confined for one year at the time he sued out his writ, he was not entitled to the relief sought, and the writ was denied. In the course of the opinion the court expressed the view that petitioner could not, under the circumstances, by reason of section 19a of the Penal Code, be confined for more than a, year. That portion of the ease, however, was mere

dicta

and the decisions cited in support thereof do not support this conclusion. We do not deem a review of those cases to be necessary. On the same day, Division One of that court handed down an opinion holding directly to the contrary of that of Division Two.