People v. Harvey

PULLEN, P. J.

In 1928 an information was filed against the defendant herein charging him with lewd and lascivious conduct and by a supplemental information filed shortly thereafter it was alleged that defendant had theretofore, in the state of Oregon, been convicted of a felony. On this

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information defendant in due time entered a plea of guilty and also admitted having suffered the prior conviction. At the time of the sentence it was made to appear by questions addressed to defendant by the court that he had, under said conviction in Oregon, served time therefor in the state prison. Subsequent to the plea and before the pronouncement of sentence, the court communicated with the prison authorities in Oregon, and “suspended” the pronouncing of sentence from time to time until certain information could be obtained from that source, but later proceeded to impose sentence upon defendant and committed him to the state prison for the term of his natural life.

Thereafter in 1933, defendant petitioned the superior court for a modification of this judgment upon the following grounds:

First: Failure of the trial court to pronounce judgment and sentence in accordance with the provisions of section 1168 of the Penal Code.

Second: That the judgment and plea were obtained by promise of deportation.

Third: That the court had no authority to disturb the suspended sentence.

It is apparent that the trial judge failed to follow the provisions of section 1168 of the Penal Code in that an attempt was made to fix the maximum term as the sentence of the court. This was an irregularity, as the fixing of the term of imprisonment was within the exclusive province, at that time, of the state board of prison directors.

However, under the authority of

People

v.

Mendosa,

178 Cal. 509 [173 Pac. 998], and

People