Ex parte Bandmann

• Decision Date: 23 December 1958
• Citation: 51 Cal.2d 388,333 P.2d 339
• Court: California Supreme Court
• Parties: In re Charles BANDMANN, Jr. on Habeas Corpus. Crim. 6305.

Page 339

333 P.2d 339

51 Cal.2d 388

In re Charles BANDMANN, Jr. on Habeas Corpus.

Crim. 6305.

Supreme Court of California, In Bank.

Dec. 23, 1958.

Rehearing Denied Jan. 21, 1959.

Ruth Lubbe Young, Berkeley, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

CARTER, Justice.

This is an application for a writ of habeas corpus by Charles Bandmann, Jr., an inmate of San Quentin, who, after a plea of guilty, of attempted abortion, was sentenced to state prison 'for the term prescribed by law.' In response to such application we issued an order to show cause why a writ of habeas corpus should not be granted.

Petitioner was committed to prison on February 18, 1957, and has now served 18 months. Petitioner contends that his maximum sentence should have been one year in the county jail.

The substantive offense of abortion 'is punishable by imprisonment in the State prison not less than two nor more than five years'. Pen.Code, § 274; emphasis added.

Section 664 of the Penal Code provides '[Punishments For Attempts.] Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows:

'1. [Offense punishable by more than five years in state prison. ¹ ] If the offense so attempted is punishable by imprisonment in the state prison for five years, or more, ² or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the state prison, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the offense so attempted * * *.

'2. [Offense punishable by less than five years in state prison.] If the offense so attempted is punishable by imprisonment in the state prison for any term less than five years,2 the person guilty of such attempt is punishable by imprisonment in the county jail for not more than one year.'

The only question involved here is whether subdivision 1 or subdivision 2 of section 664 applies when there has been an attempt to commit the crime of abortion. If subdivision 2 applies, petitioner has served in state prison more than the maximum term which, under that subdivision, would be one year in the county jail; if subdivision 1 is applicable then he has served 18 months of a possible 30 months and is properly in the state prison. The solution to the problem lies in the construction of the phrase found in section 274 of the Penal Code where the substantive offense of abortion is stated to be punishable by not [nor] 'more than five years.' It will be noted that subdivision 1 of section 664 of the Penal Code (Deering) is entitled 'Offense punishable by more than five years in state prison.' If the body of the subdivision used the same language it would be obvious that petitioner is correct in his contention. This, however, is not the case, since the language used there differs in that the words used there are 'for five years, or more.' This court held in In re Lee, 177 Cal. 690, 693, 171 P. 958, 959, that 'It has uniformly been held that the indeterminate sentence is in legal effect a sentence for the maximum term. It is on this basis that such sentences have been held to be certain and definite, and therefore not void for uncertainty.' It follows from this that the maximum sentence for the crime of abortion is five years, and the punishment for an attempt to commit abortion would be two and a half years in the state prison. In People v. Superior Court, 116 Cal.App. 412, 414, 415, 2 P.2d 843, it was held that subdivision 1 of section 664 provided for punishment for an attempt to commit a substantive crime at one-half of the maximum punishment prescribed for the crime itself. See, also, Ex parte Hope, 59 Cal. 423. On the other hand the language used in the title and body of subdivision 2 of section 664 is identical in that if the offense is punishable by 'less than five years' or the punishment is 'for any term less than five years' the person guilty of an attempt is to be imprisoned in the county jail 'for not more than one year.'

This court held in Los Angeles City School Dist. of Los Angeles County v. Odell, 200 Cal. 637, 641, 254 P. 570, 572, that 'The authorities are numerous to the effect that the title of an act may be relied on in ascertaining the intention of the Legislature, where the act itself is ambiguous; but the title 'cannot be used for the purpose of restraining or controlling any positive provision of the act.' People ex rel. Flynn v. Abbott, 16 Cal. 358, 359, 366; Barnes v. Jones, 51 Cal. 303, 306; In Matter of Boston Min. & Mill. Co., 51 Cal. 624, 626. There is no ambiguity in the amendatory act of 1919, and the title thereto may not, therefore, be employed to control the plain provisions thereof.' See, also, Heron v. Riley, 209 Cal. 507, 510, 511, 289 P. 160. It is apparent from the body of subdivision 1 of section 664 of the Penal Code that its provisions are unambiguous if the title thereof is disregarded as it must be since it is merely an editorial one. It is plainly stated that if the offense so attempted is punishable by imprisonment in the state prison for five years or more that the person guilty of such an attempt is punishable by imprisonment in the state prison, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the offense so attempted. Subdivision 2 of section 664 of the Penal Code makes provision for punishment of those guilty of attempts to commit crimes where the substantive offense is punishable in the state prison 'for any term less than five years.' From a careful reading of the two sections it is obvious that the Legislature intended that a crime carrying a five year maximum sentence should constitute the dividing line. In other words, if the substantive offense carries a maximum penalty of five years or more, subdivision 1 is applicable; if the substantive offense carries a maximum penalty of less than five years, subdivision 2 is applicable.

In disregarding the title of subdivision 1 of section 664 of the Penal Code, and looking only to the plain provisions found in the body thereof, subdivisions 1 and 2 are consistent and harmonious. We said in People v. Moroney, 24 Cal.2d 638, 642, 643, 150 P.2d 888, 890, that 'the cardinal rule of statutory construction' was that "a statute must be read and considered as a whole, in order that the true legislative intention may be determined. All the parts of a statute must be construed together, and harmonized, so far as it is possible to do so without doing violence to the language or to the spirit and purpose of the act, so that the statute may stand in its entirety. For the purpose of harmonizing apparently conflicting clauses, each should be read with direct reference to every other which relates to the same subject, and so read, if possible, as to avoid repugnancy." We also said that 'In cases of conflict between the provisions of the same statute, those susceptible of only one meaning will control those susceptible of two if the statute can thereby be made harmonious.' If we were to construe the two subdivisions of section 664 as contended by petitioner, we would have a hiatus at the five year mark since subdivision 1 would then provide for punishment for attempts where the maximum penalty for the substantive offense was more than five years with subdivision 2 providing for punishment for attempts where the maximum penalty for the substantive offense was less than five years. 'The act must be considered and applied in all of its parts, and each section must be reconciled with the others and be made effective if possible.' Wulff-Hansen & Co. v. Silvers, 21 Cal.2d 253, 260, 131 P.2d 373, 377, and, see, People v. Trieber, 28 Cal.2d 657, 661, 171 P.2d 1; In re Petraeus, 12 Cal.2d 579, 583, 86 P.2d 343.

Petitioner argues that subdivision 2 of section 664 was held applicable to attempted abortion in People v. Bowlby, 135 Cal.App.2d 519, 287 P.2d 547, 53 A.L.R.2d 1147. In the Bowlby case the defendant was convicted of abortion and of attempted abortion. He was sentenced to one year in the county jail on the attempted abortion count. Although the court affirmed the judgment of conviction there was no discussion of the point raised here, and the case cannot be considered authority for the proposition urged by petitioner that subdivision 2 of section 664 is applicable to attempted abortion convictions.

In view of the clear wording found in the body of subdivisions 1 and 2 of section 664 of the Penal Code there is no merit to petitioner's contention that said statute is clearly ambiguous requiring a construction that subdivision 2 is applicable to this case and defendant should have received a county jail sentence. While it is true as contended by petitioner that the Index to the 1957 Standard Penal Code of California, published by Hanna Legal Publications, lists felonies punishable by five years or less as governed by subdivision 2 and those punishable by more than five years as governed by subdivision 1, such 'Index' is not a part of the statute as it was inserted by the author of the publication and not by the Legislature.

Petitioner relies on Ex parte Hope, 59 Cal. 423, 424, 425, in support of his argument that 'nor more than five years' is, in reality, a provision that the penalty is less than five years. In the Hope case the petitioner had been convicted of attempted first degree burglary and was sentenced to serve seven and one-half years which the court noted was 'one half of the longest term of imprisonment prescribed for a conviction of the offense so attempted.' Petitioner there contended that subdivision 2 of section 664 of the Penal Code was...