People v. Smith

STURTEVANT, J.

The defendant was convicted of violating section 106 of the Penal Code and has appealed from the judgment.

On May 25, 1925, the defendant was convicted of robbery in the second degree and was given an indeterminate sentence under section 1168 of the Penal Code. Thereupon he was sent to San Quentin. On August 13, 1927, the board of prison directors fixed the term of the defendant at ten years. On February 2, 1928, the defendant made an application to be sent to one of the road camps. On April 16, 1928, he was sent to “Camp 15.” On September 16, 1928, the records show he escaped. It was that escape which the district attorney charged in the information on file in this action.

The defendant contends that the evidence is insufficient to show (1) that the defendant was, prior to the filing of this information, committed to a state prison for a term less than life; (2) that he escaped while under the surveillance of a prison guard; (3) to identify him with the person who was convicted of robbery; and (4) to show that the defendant was under any surveillance. All of these attacks except the third rest on the construction which the defendant places on the statute and the information which purports to plead the provisions of the statute. The defendant calls attention to the fact that the judgment entered in Los Angeles County was for robbery in the second degree. He then asserts that he was sent to prison for a life term (Pen. Code, sec. 671) as distinguished from a term for less than life. In making this contention the defendant claims that in every instance under the Indeterminate Sentence Law the defendant is sent to prison for

[749]

the maximum term.

(In re Lee,

177 Cal. 690 [171 Pac. 958].) Conceding that for certain purposes such is the rule we think that even the defendant must concede that the very nature of the new statute is that it provides that every sentence will be indeterminate. So far as the facts of this case are concerned, the sentence was required to be, and in fact was, indeterminate when the trial judge rendered the sentence. It is equally clear that thereafter when the board of prison directors fixed the term, the sentence which was theretofore indeterminate became determinate. All of these facts had transpired before the defendant was sent to camp 15. As stated above, the indeterminate sentence was imposed on May 25, 1925. If, on a subsequent day he had been pardoned, thereafter his status would not be that of a prisoner “committed for life” or for any other term. Likewise, when on August 13, 1927, the board of prison directors fixed his term at ten years thereafter he was a “prisoner committed to the state prison of the State of California at San Quentin for a term less than for life.”