It is the established rule that “When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.” (People v. Stuart (1956), 47 Cal.2d 167, 175 [7] [302 P.2d 5, 55 A.L.R.2d 705] ; People v. Smith (1955), 44 Cal.2d 77, 79 [2] [279 P.2d 33]; In re Bramble (1947), 31 Cal.2d 43, 51 [6, 7] [187 P.2d 411] ; In re McVickers (1946), 29 Cal.2d 264, 278 [176 P.2d 40] ; People v. Valentine (1946), 28 Cal.2d 121, 143 [20] [169 P.2d 1]; People v. Ralph (1944), 24 Cal.2d 575, 581 [2] [150 P.2d 401].) As further declared in People v. Ralph (1944), supra, “criminal statutes will not be built up ‘by judicial grafting upon legislation. ... [I]t is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.’ [Citations.]”
Applying these principles in this ease, any ambiguity in the statute here involved should be resolved in petitioner’s favor, and the holding should be that he has already served the full maximum term for his offense of attempted abortion.
So far as here material the pertinent statute, section 664 of the Penal Code, provides (subdivision 1) one punishment where the offense attempted “is punishable by imprisonment in the state prison for five years, or more,” and (subdivision 2) a substantially lesser punishment for the attempt where the offense attempted “is punishable by imprisonment in the state prison for any term less than five years.”1 (Italics added.) It seems to me that the legislative intent, as defined by the language used, thus places the turning point on the *398maximum and the minimum terms which may be imposed as punishment for the offense attempted. In other words, the distinction intended is based on the potentials of punishment as between two classes of crimes; i.e., one class having a minimum of five years’ imprisonment and the other class having a maximum of five years. (Cf. Ex parte Hope (1881), 59 Cal. 423.)
This view, I think, gives rational effect to the differentiation expressed in the statute, and also follows the rule of construction in favor of the accused. The offense here attempted1 obviously “is punishable by imprisonment in the state prison for any [some] term less than five years,” but it is not punishable “for five years, or more.” (Italics added.) That is, it is not punishable for some or any term which is of more than five years’ duration. Thus the attempt to commit the offense plainly does not fall within the class of attempts which carry the more severe penalty that results where the offense attempted is punishable by imprisonment for more than five years.
It follows that the crime to which petitioner pleaded guilty (attempted abortion) does fall within the class which bears the lesser punishment of “imprisonment in the county jail for not more than one year” (Pen. Code, § 664, subd. 2), and that because petitioner has already served more than one year’s imprisonment petitioner, and not the writ, should be discharged.2
Traynor, J., concurred.
Petitioner’s application for a rehearing was denied January 21, 1959. Traynor, J., and Schauer, J., were of the opinion that the application should be granted.
Abortion, the offense here attempted, “is punishable by imprisonment in the state prison not less than two nor more than five years.” (Pen. Code, $ 274.)
Penal Code, section 2900.1: "Where a defendant has served any portion of his sentence under commitment "based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.”