In Re Allen

Sentenced to consecutive terms on two felony convictions, petitioner and a codefendant entered prison September 12, 1960. Information, verdict and judgment all describe the offenses as (1) “conspiracy to commit the crime of theft” (Pen. Code, § 182.4), and (2) “attempted grand theft” (Pen. Code, §§ 664 and 487.1). On March 26, 1963, the Adult Authority fixed petitioner’s consecutive terms at two years nine months and five years. He was paroled April 19, 1963, but parole was cancelled March 5,1964, and his terms refixed at maximum.

His petition for habeas corpus asserts that he is being punished twice for a single offense. The trial transcript shows that he and his codefendant sought unsuccessfully to mulct one Compton of $500 by a “bunco game” ruse. The codefendants made but a single effort to get this sum. It follows that but one punishment could properly be imposed (Pen. Code, § 654; Neal v. State of California, 55 Cal.2d 11 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ]), and the People so concede.

The double punishment is to be cured by eliminating the sentence for the offense which carries the lesser punishment (P eople v. McFarland, 58 Cal.2d 748, 762-763 [ 26 Cal.Rptr. 473 , 376 P.2d…