In Re Passerello

Petitioner was tried on an information framed in two counts—burglary and grand larceny. The jury rendered its verdict finding him guilty on both counts and fixing the degree of burglary under the first count as of the first degree. The trial judge, in entering judgment, sentenced the petitioner on both counts in accord with the verdict of the jury, but appended an order purporting to find that petitioner was guilty of burglary in the second degree. An appeal was taken from the judgment and af firmed in People v. Sugarman and Passarello, 80 Cal. App. 321 [ 251 Pac. 949 ]. The board of prison directors thereupon fixed the term of petitioner’s sentence as one year upon the grand larceny count and eight years on the burglary count. The petitioner sues out this writ seeking his release from the state penitentiary on the ground that the judgment under which he is confined is void because the act of burglary upon which he was convicted was in fact burglary of the second degree; that the verdict of the jury finding him guilty of first degree burglary was, therefore, not supported by the evidence; and that the trial judge ¡was without jurisdiction to reduce the degree of the crime from…