In this proceeding the petition for a writ of habeas corpus shows that the applicant was convicted on five counts of robbery, out of a larger number stated in an indictment, and that all of said offenses were charged as having been committed prior to August 18, 1923. On each of three of these charges Dunlap was sentenced to prison for terms of "one year to life," and on each of the other two the *Page 771 sentence was for "five years to life." These sentences were imposed on the twenty-ninth day of August, 1924.
The applicant claims that his imprisonment under said sentences is illegal in this, that said sentences for a minimum term of five years were not authorized by the law in force at the time when the offenses were committed.
Prior to August 18, 1923, section 213 of the Penal Code read as follows: "Robbery is punishable by imprisonment in the state prison not less than one year." By amendment effective August 18, 1923, that section was made to provide that robbery in the first degree is punishable for not less than five years, and robbery in the second degree for not less than one year.
[1] Assuming that, as petitioner contends, the punishment to be imposed on defendant is limited by the law in force at the time when the offenses were committed, and that therefore the sentences which provided a minimum of five years were not authorized, it is sufficient to say that they are not void intoto. [2] The judgment having been pronounced less than one year prior to this time, it is clear that the petitioner has not served the time for which he may be lawfully imprisoned. "It is the established practice of this court not to consider any question of excess of sentence until the expiration of the time for which the prisoner may be lawfully confined. It is clear, therefore, that a writ should not be granted at this time." (Inre Morck, 180 Cal. 384 [181 P. 657].)
The application for a writ of habeas corpus is denied.
Houser, J., and Curtis, J., concurred. *Page 772