People v. Superior Court , 135 Cal. App. 562 ( 1933 )

THE COURT.

In an action against one Oliver, the defendant was convicted of attempted grand theft, with two prior convictions of other offenses. Bespondent court sentenced Oliver to a term of one year in the county jail. It is the contention of the district attorney that under the circumstances of the case, the court was without authority to impose a misdemeanor sentence, and that the punishment required to be imposed is by way of sentence to a term in the state prison.

Apparently the respondent has been convinced that it was in error, for we have presented to us a stipulation that the peremptory writ of mandate may issue. On examination of the authorities—particularly referring to Penal Code, sections 489 and 664, and People v. Superior Court, 116 Cal. App. 412 [2 Pac. (2d) 843], and Ex parte Hope, 59 Cal. 423—we are satisfied that this court should approve the stipulation thus made.

Let the peremptory writ issue.