In Re Carlton

HART, J.

To the writer, as a justice of this court, the petitioner, who is confined in the state prison at Represa, state of California,, under a sentence of five years for burglary of the second degree, addresses this petition, claiming that his restraint by the warden of said prison is unlawful for the reason that the state board of prison directors, in fixing his punishment under the indeterminate sentence law, exceeded its jurisdiction for reasons to be hereinafter stated.

The petitioner presents this application

in propria persona

or without being represented by an attorney, and, as I find, upon examination of the same, that it is plainly my duty to deny the application, it is believed to be only just to him that the reason for so doing should be briefly stated.

Section 461 of the Penal Code provides that “burglary of the second degree is punishable by imprisonment in the state prison for not more than five years.” Thus it will be observed that no minimum penalty is

specifically

prescribed for said crime. It is alleged in the petition, however, that the petitioner was given an indeterminate sentence of “from nothing to five years,” and it is contended by the petitioner, first, that the prison board is without legal authority to fix the term of the prisoner in those cases where there is no minimum penalty specifically prescribed by the law; second, that, if said board is in such cases authorized to fix or determine the time during which the prisoner shall remain in prison, and the court sentencing the prisoner has not, in its judgment of sentence, fixed or specified the minimum penalty, then, in its order determining what length of time the prisoner shall serve, said board must also fix or specify the minimum term, and that omission to do so renders the determination or order void. In support of the proposition first stated, the case of

Ex parte Heath,

49 Cal. App. 657, [194 Pac. 68], is cited.

[227]

I first observe that, in the absence of a better showing than is here made of the nature of the sentence pronounced by the court against the petitioner, I will not assume or believe that any such sentence was pronounced, as it would involve a palpable absurdity, assuming that the fixing of a minimum and a maximum or any penalty in the judgment of sentence by the court is necessary under the law or that it adds any legal force to the judgment of sentence.