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. Respondent 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.

[1] 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 P.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.