In Re Carlton

To the writer, as a justice of this court, the petitioner, who is confined in the state prison at Represa, state of California,, under a sentence of five years for burglary of the second degree, addresses this petition, claiming that his restraint by the warden of said prison is unlawful for the reason that the state board of prison directors, in fixing his punishment under the indeterminate sentence law, exceeded its jurisdiction for reasons to be hereinafter stated.

The petitioner presents this application in propria persona or without being represented by an attorney, and, as I find, upon examination of the same, that it is plainly my duty to deny the application, it is believed to be only just to him that the reason for so doing should be briefly stated.

Section 461 of the Penal Code provides that “burglary of the second degree is punishable by imprisonment in the state prison for not more than five years.” Thus it will be observed that no minimum penalty is specifically prescribed for said crime. It is alleged in the petition, however, that the petitioner was given an indeterminate sentence of “from nothing to five years,” and it is contended by the petitioner, first, that…