In re Spaulding

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[Crim. No. 1855. First Appellate District, Division One. July 25, 1935.]

In the Matter of the Application of ED SPAULDING for a Writ of Habeas Corpus.

COUNSEL

Ed. Spaulding, in pro. per., for Petitioner.

No appearance for Respondent.

OPINION

The Court.

Application for a writ of habeas corpus. From the petition it appears that petitioner was charged by [8 Cal. App. 2d 498] information filed in the Superior Court of San Bernardino County with having committed the offense declared by section 107 of the Penal Code and with having suffered three prior convictions; that he entered a plea of guilty to said charge and admitted the prior convictions, whereupon and on October 6, 1931, he was sentenced to imprisonment for life in the state prison at Folsom, wherein he is now confined under commitment from said court pursuant to said judgment of sentence.

[1] The petitioner contends, as grounds for issuance of the writ, that the sentence thus imposed is excessive and therefore void, and that he "has served the authorized term of imprisonment for the offense which would otherwise have been proper". As held in the cases of In re Morck, 180 Cal. 384 [181 P. 657], and In re Rosencrantz, 205 Cal. 534 [271 P. 902], it is the established practice in this state not to consider on habeas corpus any question of excess of sentence until the expiration of the time for which the prisoner may be lawfully confined. And in cases such as this, a maximum penalty of ten years is fixed by said section 107 for a violation of its provisions, which after allowing for full credits given by section 1168 of said code, would be reduced to six years and six months. Admittedly petitioner has not yet served that period of time, and therefore, until he does, he is not entitled, under the rule of the case above cited, to raise the question of excessive penalty.

Upon the ground mentioned the application is denied.