In Re Gilbert

Petitioner is imprisoned in the state prison at Folsom by virtue of a commitment issued out of the superior court of the state of California in and for the county of Alameda, and seeks to be released on habeas corpus upon the ground that the judgment of sentence is void.

The uncontroverted facts are that on November 24, 1926, petitioner was charged in said court with having attempted to commit the crime of burglary and with having suffered a prior conviction of burglary in the second degree. He entered a plea of not guilty to the former and admitted the latter, and upon trial was found guilty of an attempt to commit burglary in the first degree. The judgment of sentence was that he “be confined in the state prison of the State of California at Folsom as prescribed by law.”

An attempt to commit burglary in the first degree is punishable by imprisonment in the state prison for a term not exceeding one-half of the longest term of imprisonment which may be imposed upon conviction for the offense so attempted (Pen. Code, sec. 664). The minimum punishment prescribed for a conviction of burglary in the first degree is five years’ imprisonment in the state prison (Pen. Code, sec. 461)…