People v. Sama

LAWLOR, J.

Appellant was accused, by information filed on January 5, 1921, of the crime of attempt to commit robbery, to which he pleaded not guilty, and upon the trial was found “guilty of an attempt to.commit robbery as charged in the information.” The judgment purports to be rendered under the indeterminate sentence law, and provides that appellant “be confined in the state prison of the state of California as prescribed by law. ’ ’ From that judgment appellant takes this appeal.

The only question presented on appeal is whether the judgment is invalid because under the sentence a definite maximum punishment was not in legal effect imposed. Appellant contends that it is void for uncertainty, because “it sentences appellant to be imprisoned for one-half of his life, and no one knows, or can know, before appellant’s death, what one-half of his life will be.” It is insisted the decisions are unanimous that an indeterminate sentence is really one for the maximum sentence; that the prison board in fixing the term at less than the maximum is merely exercising executive clemency; that the maximum sentence in this case is one-half of appellant’s life; that such a sentence has always been held void for uncertainty; that, there

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fore, there is no valid penalty provided in this case, and the court cannot impose any punishment for the commission of the crime, and that appellant should be discharged. Respondent’s contention is that there is a definite minimum term of six months; that when the minimum sentence has been served it becomes the duty of the state board of prison directors to determine what length of time appellant shall serve; that there is, therefore, no time during which the penalty is vague or uncertain; that the maximum term of imprisonment for this crime was the same before the adoption of the indeterminate sentence law as it is now, and that then the trial court had power to fix a term of imprisonment; that the indeterminate sentence law has transferred this power to the said board; that the statement that an indeterminate sentence is a sentence for the maximum term is but a theory.

The Penal Code provides: “Robbery is punishable by imprisonment in the state prison not less than one year” (sec. 213); “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, . . . the person guilty of such attempt is punishable by imprisonment in the state prison, ... for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the offense so attempted” (sec. 664); “Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the court authorized to pronounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than that prescribed” (sec. 671). From these statutory provisions it would appear that the longest term of imprisonment for an attempt to commit robbery is one-half the natural life of the offender.