In Re Kepford

[539]

WASTE, C. J.

Application for a writ of

habeas corpus.

Under an information filed by the district attorney of San Joaquin County, petitioner was charged with and convicted of" a felony, to wit, driving an automobile without the consent of the owner in violation of section 146 of the California Vehicle Act. Petitioner was also charged with and plead guilty to two prior felony convictions. He was sentenced to imprisonment in Folsom state prison for the indeterminate period prescribed .by law, being received at the prison on June 15, 1928. Thereafter the prison board fixed his definite term of incarceration at ten years. Subsequently and on May 14, 1932, the prison board, recognizing that it had exceeded its jurisdiction in so fixing petitioner’s sentence, rescinded its order and fixed his term of imprisonment at seven years.

Citing sections 18 and 667 of the Penal Code, as they read at the time of his conviction and sentence, petitioner contends that the maximum term for which he may legally be sentenced is five years and that the prison board therefore exceeded its authority in fixing his term at seven years. Inasmuch as his time served plus his time credits, duly allowed, now total in excess of five years, petitioner seeks his release and discharge.

Section 146 of the California Vehicle Act, for the violation of which petitioner now stands convicted, reads in part: “Any person who shall drive a vehicle not his own, without the consent of the owner thereof, and in the absence of the owner, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, shall be deemed guilty of a felony.”

The penalty for such felony is prescribed by section 18 of the Penal Code which, at the time of petitioner’s conviction and sentence, read as follows: “Except in cases where a different punishment is prescribed by this code every offense declared to be a felony is punishable by imprisonment in the state prison, not exceeding five years.”

The maximum penalty for a violation of section 146 of the California Vehicle Act is therefore five years. In view of this, petitioner cites us to section 667 of the Penal Code, which, at the time of his conviction and sentence, provided: “Every person who, having been convicted of any offense