In Re Silva

The petitioner was convicted of an offense committed before the taking effect of the so-called indeterminate sentence law. In passing judgment upon him, however, the court sentenced him to imprisonment, to use the language of the judgment, “in accordance with section 461 of the Penal Code,” which section provides that the punishment for burglary of the first degree—the offense of which the petitioner was convicted, should be imprisonment for not less than one year nor more than fifteen, thus leaving undetermined the duration of his confinement. Subsequently and after the decision of the supreme court in the case of Ex parte Lee, 177 Cal. 689 , [ 171 Pac. 958 ], the petitioner was brought before the superior court and resentenced, his punishment this time being'fixed at one year’s imprisonment. At this time he had already served six months and six days; and if the second sentence dates from the making and entry of the first judgment, as the petitioner contends, he has served the full term imposed when resentenced if account be taken of certain credits for good conduct to which it is admitted he is entitled, and is consequently entitled to be released.

It is conceded that the court…