People v. Wissenfeld

WOOD (Fred B.), J.

In 1948, based upon his plea of guilty of the charge of assault with intent to commit robbery while armed, petitioner was sentenced to imprisonment in the state prison for the term prescribed by law. Thereupon the court suspended sentence on condition that petitioner be confined in the county jail for one year. This order of suspension was in legal effect an order granting probation

(Oster

v.

Municipal Court,

45 Cal.2d 134, 139 [287 P.2d 755];

People

v.

Sheeley,

159 Cal.App.2d 578, 580 [324 P.2d

65]; People

v.

McGillis,

166 Cal.App.2d 91, 93 [332 P.2d 706] ;

People

v.

Brandon,

166 Cal.App.2d 96, 98 [332 P.2d 708].)

Ten years later petitioner, now incarcerated in a New York state prison, filed a petition for a writ of error

coram nobis

to vacate the 1948 sentence upon the theory that it was void because, as alleged by petitioner, he had previously been convicted in New York state of third degree robbery, allegedly a felony if committed in California, and therefore not entitled to probation. (Pen. Code, § 1203.) He appeals from an order denying his petition.

[61]

If the order of suspension were void for the reason assigned, it would not infect the sentence itself with invalidity. In such a case “the judgment remains valid and must be served.”

(People

v.