People v. Mendosa

THE COURT.

The defendant was convicted of burglary in the second degree and appeals from the judgment and from the order denying his motion for a new trial.

The judgment pronounced upon such conviction was as follows:

“The said Albert Mendosa having been duly convicted in this court of the crime of burglary in the second degree, it is therefore ordered that said Albert Mendosa be punished by imprisonment in the state prison at San Quentin for a period of not less than one nor more than five years; it is further ordered by the court that the sentence be suspended and the defendant remanded to the custody of the sheriff, and confined in the county jail until the further order of the court.”

The opinion of the district court of appeal of the first appellate district was in part as follows:

“We are satisfied from a careful examination of the record that the evidence amply justified the verdict, that the court’s instructions fully covered the case, and that there was no error committed in limiting defendant’s argument to fifteen minutes in view of the small number of witnesses examined and the brevity of their testimony. There is no merit in the contention that the conviction was not good in law.

“But the judgment based on the conviction and the order of suspension of judgment are open to serious objection. The crime was committed in August, 1917, subsequent to the going into effect of section 1168 of the Penal Code, [Stats. 1917, p. 665], known as the ‘indeterminate sentence’ law, the constitutionality of which has been recently upheld in the case of

In re Lee

(Cal.), 171 Pac. 958. That section provides that ‘the court in imposing such sentence shall not fix the term of . . . imprisonment,’ but that ‘the period of such confinement shall not exceed the maximum or be less than the minimum term of imprisonment provided by law for the public offense of which such person was convicted.’ Under this section the judgment of the court properly consists of a recital

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of the offense of which the defendant stands convicted, a designation of the state prison to which he is committed, and nothing more. In the ease at bar the court was in error in fixing a minimum term of one year, because section 461 of the Penal Code, which prescribes the punishment for burglary, provides no minimum term for burglary in the second degree. . . .