People v. Jones

[555]

WASTE, C. J.

Upon his plea of guilty to a charge of forgery committed while on parole, and admission of three prior felony convictions, respondent, on May 25, 1933, was sentenced to the state prison and adjudged an habitual criminal. On December 3, 1935, and upon motion of defendant, the trial court, purporting to act under a 1935 amendment to section 644 of the Penal Code (the habitual criminal statute), made an order modifying the judgment by deleting therefrom all reference to the defendant as an habitual criminal. The amendment to the section authorized a trial court, in exceptional cases, but not later than sixty days after commencement of the imprisonment, to amend a judgment to provide that the defendant is not an habitual criminal. The People appeal from the order.

The sole question presented relates to the commencement of respondent’s life sentence as an habitual criminal, as originally determined in the judgment. If his life sentence as such habitual criminal commenced with the entry of judgment in 1933, then the trial court was without jurisdiction to amend the same in 1935, for the power to so modify is expressly limited by the 1935 amendment

(supra)

to a period of sixty days thereafter. However, if respondent’s life sentence as an habitual criminal commenced at the expiration of his unexpired term on the prior sentence, part of which he was serving on parole at the time of his last conviction, which in this case would have been October 13, 1935, the court’s modification of the judgment on December 3, 1935, was timely under the amended section.

In so modifying the judgment the trial court was evidently influenced by a stipulation of the district attorney, erroneous and therefore not binding on the court, that the life sentence as an habitual criminal actually commenced at the termination of the prior unexpired sentence, which, as stated, was October 13, 1935. In entering into this stipulation, the district attorney apparently had in mind the provision of section 1168 of the Penal Code (the indeterminate sentence law) declaring that the term of a parole violator for an offense committed while on parole shall commence after the expiration of the unexpired prior term.

It is the position of the attorney-general on appeal that the 1935 amendment of section 644,