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Court of Appeal, First District, Division 4, California.

Jack LEAMING, Petitioner, v. MUNICIPAL COURT OF the SAN JOSE-MILPTIAS JUDICIAL DISTRICT, COUNTY OF SANTA CLARA, Respondent; PEOPLE of the State of California, Real Party in Interest.

Civ. 33022.

Decided: July 06, 1973

Shelton, Packard & Jay, San Mateo, for petitioner. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., W. Eric Collins, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for respondent.


Petitioner, asking for a rehearing, cites People v. Walsh, 32 Cal.App.3d 463, 108 Cal.Rptr. 115, in which it was held that a subsequent offense under Penal Code section 314, subdivison 1, is not a felony because Penal Code section 181 provides for imprisonment in a state prison ‘except in case where a different punishment is prescribed any law of this State,’ and Penal Code section 314 does prescribe a different punishment for a second violation, even though such punishment may not now (since the ruling of In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921) be imposed. We respectfully disagree. Since the Supreme Court nullified the penalty purportedly prescribed by section 314 on constitutional grounds, no ‘different punishment’ is extant. Besides, the Lynch case itself refers to Penal Code section 18 in connection with section 314 (8 Cal.3d at p. 439, 105 Cal.Rptr. 217, 503 P.2d 921).

Petitioner further argues that section 18 is inapplicable because under its second paragraph the section itself does not apply to any offense punishable by imprisonment in state prison but without alternative of fine, and section 314 does not provide for such alternative. We interpret the second paragraph of section 18 as applying only to the proviso in the first paragraph. We reach this conclusion because: 1) If it were not so, in the case of a crime described as a felony but in which punishment was not prescribed by any other statute than that of section 18 (hence no punishment by an alternative of fine), there could be no penalty whatever in either state prison or county jail. Such an absurdity must be avoided. 2) As an example of such a felony, offering false evidence is described as a felony (Pen.Code, § 132), but no specific statutory punishment is prescribed. It was recognized nevertheless that violation of section 132 is punishable by imprisonment for not less than six months nor more than five years under sections 18 and 18a of the Penal Code. (In re Jones, 5 Cal.3d 390, 393, fn. 1, 96 Cal.Rptr. 448, 487 P.2d 1016.) 3) The history of the second paragraph of section 18 supports our conclusion. In 1956 the Attorney General rendered an opinion as to the effect of section 18's proviso. (28 Ops.Cal.Atty.Gen. 279, 282.) In 1956 section 18 consisted solely of the first paragraph of the section as it now exists. The Attorney General concluded that the proviso meant that county jail time could be given for any felony punishable by state prison time or fine, but that county jail time could not be given where no alternative of fine was prescribed for the felony. In 1957 section 18 was amended to add the second paragraph and thus to codify the Attorney General's opinion. (32 State Bar J. 616.) Hence, it is clear that the last paragraph applies only to the proviso, notwithstanding the fact that the words ‘This section’ are used at the beginning of the paragraph.

The petition for rehearing is denied.


1.  Penal Code section 18 provides: ‘Except in cases where a different punishment is prescribed by any law if this State, every offense declared to be a felony is punishable by imprisonment in any of the state prisons, not exceeding five years; provided, however, every offense which is prescribed by any law of the State to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.‘This section shall not be construed to apply to offenses set forth in Division 10 of the Health and Safety Code, nor to any offense which is prescribed by any law of this State to be a felony punishable by imprisonment in any of the state prisons, but without alternative of fine.’