PEOPLE v. JONES.*
This is an appeal by the people from an order of the superior court in which a former judgment was modified by substituting a finding that defendant was not an habitual criminal.
An information was filed April 14, 1933 in which it was charged that defendant was guilty of the crime of forgery, with the additional charge that prior thereto he had thrice been convicted of felonies and had served a term of imprisonment for each of them. Upon his plea of guilty and admission of prior convictions, defendant on May 25, 1933, was sentenced to the state prison and adjudged an habitual criminal. At the time of the commission of the forgery charged in the information and at the time of the pronouncement of the sentence therefor, defendant was on parole from the state prison, having been released during part of the term for which he had been sentenced on one of the prior convictions. In June, 1933, pursuant to the proceedings of May 25, he was returned to the state prison. The term which he was serving at the time he was released on parole would have expired October 13, 1935.
Defendant presented a motion in the superior court on November 15, 1935, for modification of the judgment of May 25, 1933. The district attorney stipulated that defendant “actually began the service of the term of imprisonment imposed by such judgment on October 13, 1935, that being the termination of the sentence which he was serving at the time he was paroled.” On December 3, 1935, the court made the following findings and order: “That the actual commencement of imprisonment under the said judgment on May 25, 1933, did not begin until, and that it did begin on, October 13, 1935; that sixty days have not passed since said actual commencement of said imprisonment; and that this case of the defendant is an exceptional case: Now therefore the court finds and orders that the said judgment of May 25, 1933, be and the same hereby is, modified and/or amended by eliminating therefrom the finding that the defendant was an habitual criminal; and the court now finds, orders and provides that the defendant is not an habitual criminal.”
The law in force on May 25, 1933, being a portion of section 1168 of the Penal Code as it then read, provided: “If any prisoner who has been released on parole outside of the prison buildings and inclosures by permission of the state board of prison directors shall commit any crime for which he is convicted and sentenced by the court, the sentence or sentences imposed on him for such crime shall commence at the expiration of the sentence he was serving when granted parole.” Stats. 1931, p. 1057. Section 644 of the Penal Code makes provision for punishment of habitual criminals. That section was amended in 1935 (St.1935, p. 1699) to read as follows: “Every person convicted in this State of any felony who shall have been previously three times convicted, upon charges separately brought and tried, and who shall have served separate terms therefor in any State prison, * * * either in this State or elsewhere, of the crime of * * * grand theft * * * forgery * * * or any of the aforementioned felonies, shall be punished by imprisonment in the State prison for life and shall not be eligible for release on parole; provided that in exceptional cases, at any time not later than sixty days after the actual commencement of imprisonment, the court may, in its discretion, provide that the defendant is not an habitual criminal, and in such case the defendant shall not be subject to the provisions of this section.” Before the amendment of 1935 the statute did not give to the court the discretion in exceptional cases to provide that the defendant should not be held to be an habitual criminal.
The question before us is: When did defendant commence to serve the life sentence imposed May 25, 1933? If such sentence commenced upon his delivery to the penitentiary in June of that year, then the court was without authority in November of 1935 to modify its judgment by finding that defendant was not an habitual criminal, because such order may only be made “at any time not later than sixty days after the actual commencement of the imprisonment.” If such imprisonment commenced at the termination of the prior sentence which defendant was serving at the time he was paroled, then the 60-day period would date from October 13, 1935, and the court's order was made within the time limit.
As noted above, the provisions with relation to the commencement of sentence upon expiration of the term being served when parole was granted, as in force at the time sentence was pronounced upon defendant herein as an habitual criminal, were found in section 1168 of the Penal Code. In People v. Vaile, 2 Cal.(2d) 441, 42 P.(2d) 321, 322, the Supreme Court has declared that the indeterminate sentence provisions of that section are inapplicable in the case of an habitual criminal. Therefore, inasmuch as “the law itself has set a sole, definite and unchangeable period of imprisonment” and “the only term of imprisonment permissible under the law was imprisonment for life without parole,” we conclude that defendant herein actually commenced his imprisonment upon delivery to the penitentiary in June, 1933, and the court was without authority in November of 1935 to make the attempted modification of its previous order, even assuming, which we do not decide, that section 644 of the Penal Code as amended in 1935 was retroactive.
The stipulation of the district attorney to the effect that defendant actually began service of his term of imprisonment October 13, 1935, being an erroneous stipulation as to a conclusion of law, cannot bind this court. People v. Singh, 121 Cal.App. 107, 8 P.(2d) 898.
The order appealed from is reversed.
I dissent. At the time of the commission of the offense for which sentence was pronounced, defendant was on parole from the state prison in accordance with the provisions of section 1168 of the Penal Code, wherein it is provided that “prisoners on parole shall remain under the legal custody and control of the state board of prison directors and shall be subject at any time to be taken back within the inclosure of the prison.” A part of the section, in force at that time, provided that, if a prisoner while on parole should commit a crime and be sentenced therefor, the sentence imposed for such crime must “commence at the expiration of the sentence he was serving when granted parole.” Defendant was in the legal custody of the prison directors both before and after the sentence of May 25, 1933. Upon his return to the prison, he was entered on the records as a parole violator, his term on the latest sentence to commence upon the expiration of the old term, October 13, 1935. The statement in the majority opinion that he was returned to prison “pursuant to the proceedings of May 25,” 1933, does not, in my opinion, completely cover the point. If defendant had been taken directly to prison as a parole violator, without a new prosecution in court, he undoubtedly could and would have been legally confined until October 13, 1935. The sentence of May 25, 1933, was not made to run concurrently with any other sentence, and could not be effective to cut off his imprisonment for the remainder of the old term. Under the law in force at the time, it was the duty of the warden to confine defendant for the remainder of the term he was serving when granted parole. The sentence of May 25, 1933, commenced thereafter.
The case of People v. Vaile, cited in the majority opinion, is not decisive of the issue now before us. The defendant in that case was not a parole violator, and the date of the “actual commencement of imprisonment” was not in issue. It will be noted that in the Vaile Case the court stated that under the circumstances of that case “the indeterminate sentence provisions of section 1168 of the Penal Code are inapplicable.” The part of section 1168 prescribing the date of commencement of the latest sentence is not one of the indeterminate sentence provisions of the section.
The order from which the appeal is taken was made within 60 days from the time of the actual commencement of imprisonment under the sentence of May 25, 1933, and the court doubtless had authority to make the order if the provisions of the amendment of 1935, in effect at the time, were applicable to a judgment pronounced before the enactment of the amendment. The Legislature is authorized to enact laws fixing penalties and procedure to be applied. Such amendments will be enforced after their enactment unless they deny defendant his constitutional right to be free from punishment imposed by ex post facto laws. In the case In re Lee, 177 Cal. 690, 171 P. 958, 959, the court said: “If the purpose of the law is to mitigate the punishment, the law is not ex post facto, unless it can clearly be seen that, notwithstanding the beneficence of the law, it may result in the individual case in depriving the prisoner of some well-defined right.” It is manifest that the amendment of 1935 was passed for the purpose of mitigating punishment, and that it did not deprive the defendant of a constitutional right. The court retained jurisdiction to modify the judgment and properly exercised its discretion under circumstances which, as disclosed by the record, were amply sufficient to establish the exceptional nature of the case.
GOULD, Justice pro tem.
I concur: CRAIL, P. J.