Ex parte GILLIAM.*
By means of habeas corpus Wilford Gilliam seeks to correct an alleged error of the trial court determining on sentence, under Section 644 of the Penal Code, that he is an habitual criminal.
The information contained three counts. The petitioner was charged with burglary and with two prior convictions of felonies. One of the prior felonies was alleged to have been committed in Texas and it was asserted he served sentence therefor in the Texas State Prison. Regarding the other prior felony it was alleged the defendant served sentence therefor in a ‘Federal Prison known as ‘U.S.I.R.’ at Chillicothe, Ohio.' The last mentioned prison is a Federal reformatory and not a penitentiary. The defendant pleaded guilty to the principal charge of burglary, and admitted conviction of the prior felonies as charged. The trial court determined that the principal crime, of which the defendant pleaded guilty, was that of burglary of the second degree and that the prior convictions of the two other felonies rendered him an habitual criminal under Section 644 of the Penal Code. He was sentenced, May 12, 1942, to State Prison ‘for the term prescribed by law on Counts One, Two and Three of the information.’
We assume that the defendant was erroneously found to be an habitual criminal for the reason that he did not serve imprisonment on one of the prior convictions of felony in a ‘Federal Penitentiary.’ The terms ‘State prison and/or Federal penitentiary’ as they are used in Section 644 of the Penal Code do not contemplate that an accused person may be adjudged to be an habitual criminal unless he has actually twice served sentences in said named institutions. A reformatory is not ordinarily considered either a state prison or a penitentiary. 53 C.J. 1058, sec. 1; Webster's New International Dictionary, 2d Ed., p. 2094.
In the present case commitment to the state prison for the term prescribed by law is valid with respect to the principal crime of burglary and to the prior conviction of burglary committed in Texas for which he served sentence in the state prison of that state. In re Miller, 133 Cal.App. 228, 23 P.2d 1034; In re Schenk, 61 Cal.App.2d 168, 142 P.2d 343; People v. McVicker, 37 Cal.App.2d 470, 99 P.2d 1110. Excluding the erroneous determination that the defendant was an habitual criminal because he had not served sentence for the other prior felony in a Federal penitentiary, the minimum term of sentence on the two other valid counts of the information would be five years' imprisonment. Penal Code, sec. 3024(c). Since the sentence in this case was pronounced May 12, 1942, it is evident that the petitioner has not served even the minimum penalty prescribed by law. It follows that he is not illegally restrained of his liberty on that account, and that he is not entitled to be discharged from custody upon this petition for a writ of habeas corpus.
The indeterminate sentence which was rendered in this case in legal effect is a sentence for the maximum term prescribed by law, which is fifteen years on the charge of burglary alone. Penal Code, sec. 461. The defendant in this case was sentenced to the maximum term prescribed by law, subject to the shortening of that term by the Prison Board, as provided by Sections 1168 and 3020 of the Penal Code. People v. Ralph, 24 Cal.2d 575, 150 P.2d 401; In re Lee, 177 Cal. 690, 171 P. 958.
The erroneous determination that the defendant is an habitual criminal had the effect of extending the term of imprisonment provided by law. Since the trial court had jurisdiction of the person and the principal offense with which the defendant was charged, the judgment of conviction and commitment are valid with respect to the principal offense of burglary and to the prior conviction of felony in Texas for which he served imprisonment in the state prison of that state.
In 13 California Jurisprudence, page 243, section 22, it is said in that regard:
‘Where the superior court imposes a sentence in excess of that permitted by statute it is not void but it is recognized as a valid sentence for the term authorized by law.’
Likewise it is said in 25 American Jurisprudence, at page 188:
‘Contrary to some early decisions, it is now well settled that in the case of a sentence that was merely excessive, if the court which imposed it had jurisdiction of the person and subject matter, such sentence was not void ab initio because of the excess, but was good in so far as the power of the court extended and was invalid only as to the excess, and, therefore, a person in custody under such sentence cannot be discharged on habeas corpus until he has suffered or performed as much of it as was within the power of the court to impose.’
Numerous California cases hold that when the trial court has jurisdiction of the offense with which the accused person is charged, and the court has merely erroneously fixed an excessive penalty, the sentence is valid as to the term prescribed by law and invalid only as to the excess term pronounced by the court. In re Morck, 180 Cal. 384, 181 P. 657; People v. McVicker, supra; In re Goetz, 46 Cal.App.2d 848, 117 P.2d 47; 25 Am.Jur. 188, sec. 59; 76 A.L.R. 476, note.
In the Morck case, supra, the court said with respect to the consideration of an alleged excessive term of imprisonment, on habeas corpus, prior to the completion of the valid portion of a sentence that:
‘It is the established practice of this court not to consider any question of excess of sentence until the expiration of the time for which the prisoner may be lawfully confined. It is clear, therefore, that a writ should not be granted at this time.’
Assuming, as we have previously held, that, notwithstanding the invalidity of the finding that petitioner is an habitual criminal under Section 644 of the Penal Code, the judgment and sentence of the indeterminate term of imprisonment for the principal offense of burglary of the second degree and of one other conviction of a prior felony, is severable and valid, and that petitioner has not completed his sentence for the valid portion of the judgment, even deducting such credits for good behavior, if any, to which he might be entitled under Section 2920 of the Penal Code, he is not illegally restrained of his liberty.
The writ is denied and the prisoner is remanded.
ADAMS, P. J., and PEEK, J., concur.