I join in Justice Clark’s concurring and dissenting opinion, and add only the following:
*186I readily concur in the majority opinion insofar as it concludes that Penal Code section 245, subdivision (a), is constitutional on its face. Although a maximum term of life imprisonment would seem excessive as applied to certain offenders under section 245, such a term may be wholly justified as applied to others. Furthermore, I believe it fair to conclude that by reason of the availability of parole, only rarely will a person sentenced under section 245 actually serve an unduly prolonged term.
I respectfully disagree, however, with the majority’s holding, unsupported by prior authority, that whenever a person sentenced under section 245 challenges his indefinite sentence as constituting cruel or unusual punishment, the Adult Authority must, within a reasonable time thereafter, fix the “proper term” of confinement or else risk reversal of the conviction on cruel and unusual punishment grounds. (Ante, p. 183.) Under the majority’s opinion, unless the Adult Authority irrevocably fixes a definite maximum term of imprisonment for each prisoner sentenced under the Indeterminate Sentence Law, the courts will presume that the actual term is the statutory maximum (i.e., life imprisonment in the instant case) and will “analyze the constitutionality of the statute” accordingly.
In my view, the majority (in two short paragraphs of the opinion) substantially alter the Indeterminate Sentence Law, for in order to avoid a ruling that an indeterminate sentence in a particular case is cruel and unusual (as in In re Lynch, 8 Cal.3d 410, 419 [105 Cal.Rptr. 217, 503 P.2d 921]), the Adult Authority will be compelled to forfeit its term-fixing discretion and set individual maximum terms for every prisoner, terms which cannot thereafter be increased by the authority. I see no escape from the conclusion that the flexibility which is the heart of the indeterminate sentence system is thereby destroyed.
The majority attempt to justify this major change in the effect of the law on the ground that an initial fixing of the maximum term is required so that “a court can then analyze the constitutionality of the statute as applied.” (Ante, p. 183.) The majority ignore the fact, properly noted by Justice Clark, that the Indeterminate Sentence Law has operated in a constitutional fashion since its inception and, despite the absence of initial term-fixing, has withstood innumerable constitutional challenges.
*187Further, the majority’s holding in this regard is directly contrary to the Legislature’s very express statutory command contained in Penal Code section 3020: “In the case of all persons heretofore or hereafter sentenced under the provisions of Section 1168 of this code [indeterminate sentencing], the Adult Authority may determine and redetermine, after the actual commencement of imprisonment, what length of time, if any, such person shall be imprisoned ...(Italics added.)
Finally, the majority flatly contradict the unanimous expression of this court in In re Schoengarth, 66 Cal.2d 295, 302 [57 Cal.Rptr. 600, 425 P.2d 200], wherein it described the legislative import of Penal Code section 3020 in the following clear and unambiguous words: “The Adult Authority, by statute, has exclusive jurisdiction to fix the length of time a prisoner must serve within the limits of an indeterminate sentence. [Citation.] One who is legally convicted has no vested right to the determination of his sentence at less than maximum [citations], and hence the authority ‘may redetermine such sentences as conditions require [citations].” (Italics added.)
I see no basis in logic or reason on which to reconcile the majority opinion either with the clear language of Penal Code section 3020 or the relatively recent unanimous expression of this court in Schoengarth. Nor are there any compelling reasons why the Adult Authority must fix a prisoner’s maximum term so that courts can “analyze” the constitutionality of the term. As I have suggested above, in most cases a prisoner will be released from confinement well within the range of penalties permitted under the “cruel and unusual punishment” provisions of the federal and state Constitutions. In those relatively rare cases in which a prisoner is confined beyond those limits, the habeas corpus remedy is available to secure his release. (See In re Sturm, 11 Cal.3d 258, 269 [113 Cal.Rptr. 361, 521 P.2d 97].) I see no intrinsic constitutional impairment in the system.
There are very valid and demonstrable social, penal, and psychological reasons for changes in the Indeterminate Sentence Law. We are advised that the Legislature has the law under close study, and indeed that the Adult Authority already has implemented administratively a plan for major reform in its application. The present system is, no doubt, ripe for major changes in procedure. Nonetheless, in my view, the appropriate changes should come from legislative hands far better equipped to evaluate alternatives, to weigh conflicting policy considera*188tions, and to develop a carefully conceived plan of reform. The system has been subjected to the judicial microscope many, many times. The changes are neither compelled by, nor should they result from, any “constitutional” infirmities previously concealed or recently revealed.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied June 4, 1975. Clark, J., and Richardson, J., were of the opinion that.the petition should be granted.