I concur in affirming the judgment, but dissent from holding the Adult Authority must promptly and irrevocably fix the maximum term of a prisoner committed under a statute “encompassing a wide range of conduct.” The possibility the maximum sentence provided by law for such an offense may be so disproportionate to the culpability of a particular offender as to constitute cruel or unusual punishment should not be used as a pretext for judicial legislation radically altering the indeterminate sentence law. By refusing to entertain defendant’s claim until he has served the term admittedly proportionate to his culpability, this court could protect his right to be free from cruel or unusual punishment without unduly interfering with the administration of the indeterminate sentence law.
The indeterminate sentence law once provided for early, irrevocable term fixing, but such requirements are clearly contrary to more recent expressions of legislative intent. As originally enacted in 1917, section 1168 of the Penal Code provided that “[t]he governing authority of the reformatoiy or prison in which such person may be confined . . . shall *185determine after the expiration of the minimum term of imprisonment... what length of time, if any, such person shall be confined . . . (Stats. 1917, ch. 527, § 1, p. 665.) A 1929 amendment to section 1168 added that “[t]he term of imprisonment so fixed by the state board of prison directors, shall not thereafter be increased or diminished by said board for any reason whatsoever except [the allowance or forfeiture of ‘good time’ credits].” (Stats. 1929, ch. 872, § 1, p. 1930.)
However, in 1935 another amendment to section 1168 broadened the board’s power to refix terms. “In case any convicted person undergoing sentence in any of the State prisons commits any infraction of the rules and regulations of the prison board, or escapes while working outside such prison under the surveillance of prison guards, the Board of Prison Directors may revoke any order theretofore made determining the length of time such convicted person shall be imprisoned, and make a new order determining such length of time not exceeding the maximum penalty provided by law for the offense for which he was convicted ....” (Stats. 1935, ch. 603, § 1, p. 1700.) In the same amendment the requirement that the board “shall” fix a term after the expiration of the minimum term was deleted and the permissive “may” substituted.
Finally, in 1941, section 1168 was rewritten and various of its provisions distributed elsewhere in the Penal Code. Those governing the fixing of terms became sections 3020 and 3021. The 1941 amendment gave to the board, without apparent limitation, the power to “determine and redetermine” the time a prisoner must serve on his sentence or sentences. (Stats. 1941, ch. 106, §§ 13, 15, p. 1083.)
Thus the indeterminate sentence law has evolved over the past half-century from a program in which a prisoner was entitled to an early, irrevocable fixing of his maximum term, into one in which the prisoner has “no vested right to the determination of his sentence at less than maximum,” and in which his term once fixed may be refixed at the statutory maximum for cause at any time. (In re Schoengarth (1967) 66 Cal.2d 295, 302 [57 Cal.Rptr. 600, 425 P.2d 200].) There are indications that the appropriate branches of government may soon reverse this trend, but it is not our province to do so.
McComb, J., concurred.