People v. Superior Court

THE COURT.

An information was filed in the Superior Court of the City and County of San Francisco which charged one Leo Buekbee with the commission of a felony, to wit, burglary, and with a prior conviction of a felony in the state of Utah. Upon his arraignment in such cause Buekbee entered a plea of not guilty and ■ denied having suffered a prior conviction. Subsequently on the day set for the trial, with the permission of the court, he withdrew the plea of not guilty and thereupon entered a plea of guilty of attempting to commit burglary, a felony. Thereafter, by stipulation by the district attorney, the court found the degree of burglary to be the second, and upon motion by' the district attorney ordered the prior conviction to be dismissed. The court then pronounced judgment, sentencing

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the defendant to imprisonment in the county jail of the city and county of San Francisco for a term of one year.

It is claimed by the People, represented by the attorney-general, that the court was without authority to sentence a defendant convicted of an attempt to commit burglary of the second degree other than to imprisonment in the state prison, and that its judgment is therefore void.

The present proceeding, in which the People are the petitioners, is for a writ of mandate, directing the court to arraign the defendant for judgment and pronounce sentence according to law.

Section 461 of the Penal Code reads as follows: “Burglary is punishable by imprisonment in the state prison as follows: 1. Burglary in the first degree for not less than five years. 2. Burglary in the second degree for not less than one nor more than fifteen years.” And section 664 of the same code provides: “Every person who attempts to commit any crime but fails or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows: 1. If the offense so attempted is punishable by imprisonment in the state prison for five years or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the state prison, or in a county jail, as the case may be, for a term not exceeding one-half of the longest term of imprisonment prescribed upon a conviction of the offense so attempted. ... 2. 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.”