People v. Gonzales

BURNETT, J.

The appeal is from the judgment of conviction sentencing the defendants to a term of imprisonment in the state

prison,

the former for a period of fifteen years and the latter for ten years. The only question involved herein is as to the form of the judgment. Appellants contend that under the provisions of section 1168 of the Penal

[783]

Code (Stats. 1917, p. 665), providing for an indeterminate sentence, the court should not have fixed the term or duration of the punishment. The language of that section is: “Every person convicted of a public'offense, for which public offense punishment by imprisonment in any reformatory or the state prison is now prescribed by law . . . shall be sentenced to be confined in the state prison, but the court in imposing such sentence shall not fix the term or duration of the period of imprisonment.” There is no question that said act of the legislature was in effect at the time the offense herein was committed, and we may add that the constitutionality of said act has been determined by the supreme court in the

Matter of the Application of Lee,

177 Cal. 690, [171 Pac. 958]. The language as to the form of the sentence is so plain' as not to admit of discussion. We may state that the provision was incidentally alluded to in the decision of this court in the case of the

People

v.

Lee, ante,

p. 323, [172 Pac. 158].

The only question remaining is whether the offense is one for which punishment by imprisonment in any

reformatory

or the

state prison

is now prescribed by law or was

so prescribed

at the time the offense was committed. As to this there can be no possible doubt. Section 213 of the Penal Code provides: “Bobbery is punishable by imprisonment in the state prison not less than one year.” This was in force at all the times herein mentioned. In fact, it has been the law since 1872. It is therefore entirely manifest that punishment for the crime of which the appellants were convicted was and is prescribed by the law to be imprisonment in the state prison. Hence the indeterminate sentence law is applicable and the judgment should have been in the form which we have indicated.