People v. Snow

PLUMMER, J.

The defendant in this action was charged by the district attorney of the county of Sacramento with the crime of burglary. Upon arraignment the defendant entered a plea of guilty of attempt to commit burglary in the second degree, and was thereupon sentenced to imprisonment in the state prison. From this judgment the defendant appeals.

Only one point is relied upon for reversal, to wit: That under subdivision 2 of section 664 of the Penal Code

[34]

the defendant should have been sentenced to the county jail. Subdivision 2 of section 664,

supra,

reads: “If the offense so attempted is punishable by imprisonment in the State Prison for any term less than five years, the person guilty of such attempt is punishable by imprisonment in the county jail for not more than one year.” Subdivision 2 of section 461 of the Penal Code, relative to punishment for burglary in the second degree, specifies punishment by imprisonment for not less than one nor more than fifteen years. There is no limit specified in either of the sections referred to that the punishment shall be less than five years.

Under the rule announced in the case of

In re Lee,

177 Cal. 690 [171 Pac. 958], a sentence such as we are considering in this case is for the maximum period of the sentence. One-half of 'fifteen years is seven and one-half years. Thus, subdivision 1 of section 664,

supra,

is applicable here in defining that the maximum punishment is for one-half the period of time of imprisonment that could be imposed as a punishment for the offense attempted, in the event that it had been actually committed.

This case is readily distinguishable from the case of

People

v.

Sama,

189 Cal. 153 [207 Pac. 893], where it was held that the Indeterminate Sentence Law did not apply, for the simple reason that one-half of one’s natural life could not be accurately determined preceding the ending of that life. Here, one-half of fifteen years is, of course, only a matter of calculation, and being a sentence for one-half of that period, it comes within the provisions of section 1168 of the Penal Code giving jurisdiction to the state prison board of sentence and paroles to fix a term of imprisonment at a lesser number of years, or rather, to determine that upon the expiration of a lesser number of years, the defendant will become entitled to his discharge.