In Re Bellis

The judgment shows that petitioner pleaded guilty of the crime of an attempt to commit burglary, a felony, which the court found to be burglary in the second degree as charged in count one of the indictment, and that he was punished by imprisonment in the state prison at San Quentin for the term prescribed by law.

It is claimed that under subdivision 2 of section 664 of the Penal Code petitioner could only be imprisoned in the county jail for the offense to which he pleaded guilty.

The code prescribes punishment for burglary as follows : 1. Burglary in the first degree for not less than five years; 2. Burglary in the second degree for not less than one or more than fifteen years (Pen. Code, sec. 461).

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. If the offense so attempted is punishable by imprisonment in the state prison for five years, or more, or by imprisonment in the 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,…