McAllister rule in California

1992(E.g., People v. Getty (1975) 50 Cal.App.3d 101, 107-108 [ 123 Cal.Rptr. 704 ]; People v. Hartsell, supra, 34 Cal.App.3d 8, 12-15 [trial court could not effectively resentence by adding prior convictions to abstract of judgment, after the judgment was pronounced orally and was entered in the minutes and defendant already had been restrained by the sentence].) In People v. Thomas, supra, 52 Cal.2d 521 , we had occasion to review the elements of the McAllister rule in the circumstance where, during the morning court session, the trial court orally pronounced sentence to a term of incarceration i

1992(E.g., People v. Getty (1975) 50 Cal.App.3d 101, 107-108 [ 123 Cal.Rptr. 704 ]; People v. Hartsell, supra, 34 Cal.App.3d 8, 12-15 [trial court could not effectively resentence by adding prior convictions to abstract of judgment, after the judgment was pronounced orally and was entered in the minutes and defendant already had been restrained by the sentence].) In People v. Thomas, supra, 52 Cal.2d 521 , we had occasion to review the elements of the McAllister rule in the circumstance where, during the morning court session, the trial court orally pronounced sentence to a term of incarceration i

2008(Ocean Harbor House Homeowners Assn. v. California Coastal Com. (2008) 163 Cal.App.4th 215, 225, fn. 6 [ 77 Cal.Rptr.3d 432 ] [recognizing that decisions of the Commission may be “ ‘different than those proposed by the staff in the staff recommendation’ ”]; Benson v. California Coastal Com. (2006) 139 Cal.App.4th 348, 354 [ 42 Cal.Rptr.3d 580 ] [staff recommendation not “binding” on Commission]; see Regs., § 13090, subd. (d).) Finally, we reject McAllister’s claim that adopting a different standard at the de novo hearing impermissibly amended the Big Sur Land Use Plan without providing notice

2008(Ocean Harbor House Homeowners Assn. v. California Coastal Com. (2008) 163 Cal.App.4th 215, 225, fn. 6 [ 77 Cal.Rptr.3d 432 ] [recognizing that decisions of the Commission may be “ ‘different than those proposed by the staff in the staff recommendation’ ”]; Benson v. California Coastal Com. (2006) 139 Cal.App.4th 348, 354 [ 42 Cal.Rptr.3d 580 ] [staff recommendation not “binding” on Commission]; see Regs., § 13090, subd. (d).) Finally, we reject McAllister’s claim that adopting a different standard at the de novo hearing impermissibly amended the Big Sur Land Use Plan without providing notice

2008It can approve or disapprove but it cannot itself draft any part of the coastal plan.’ ” (Yost v. Thomas, supra, 36 Cal.3d at p. 572 , quoting City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 [ 183 Cal.Rptr. 909 ]; see § 30514, subds. (a), (b); Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 410-411 [ 71 Cal.Rptr.3d 522 ]; Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1192 [ 72 Cal.Rptr.3d 98 ]; Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 86 [ 60 Cal.Rptr.2d 402 ].) Moreover, when the Commission consider

2008It can approve or disapprove but it cannot itself draft any part of the coastal plan.’ ” (Yost v. Thomas, supra, 36 Cal.3d at p. 572 , quoting City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 [ 183 Cal.Rptr. 909 ]; see § 30514, subds. (a), (b); Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 410-411 [ 71 Cal.Rptr.3d 522 ]; Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1192 [ 72 Cal.Rptr.3d 98 ]; Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 86 [ 60 Cal.Rptr.2d 402 ].) Moreover, when the Commission consider

2008It can approve or disapprove but it cannot itself draft any part of the coastal plan.’ ” (Yost v. Thomas, supra, 36 Cal.3d at p. 572 , quoting City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 [ 183 Cal.Rptr. 909 ]; see § 30514, subds. (a), (b); Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 410-411 [ 71 Cal.Rptr.3d 522 ]; Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1192 [ 72 Cal.Rptr.3d 98 ]; Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 86 [ 60 Cal.Rptr.2d 402 ].) Moreover, when the Commission consider

2008It can approve or disapprove but it cannot itself draft any part of the coastal plan.’ ” (Yost v. Thomas, supra, 36 Cal.3d at p. 572 , quoting City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 [ 183 Cal.Rptr. 909 ]; see § 30514, subds. (a), (b); Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 410-411 [ 71 Cal.Rptr.3d 522 ]; Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1192 [ 72 Cal.Rptr.3d 98 ]; Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 86 [ 60 Cal.Rptr.2d 402 ].) Moreover, when the Commission consider

2008It can approve or disapprove but it cannot itself draft any part of the coastal plan.’ ” (Yost v. Thomas, supra, 36 Cal.3d at p. 572 , quoting City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 [ 183 Cal.Rptr. 909 ]; see § 30514, subds. (a), (b); Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 410-411 [ 71 Cal.Rptr.3d 522 ]; Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1192 [ 72 Cal.Rptr.3d 98 ]; Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 86 [ 60 Cal.Rptr.2d 402 ].) Moreover, when the Commission consider

2008It can approve or disapprove but it cannot itself draft any part of the coastal plan.’ ” (Yost v. Thomas, supra, 36 Cal.3d at p. 572 , quoting City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 [ 183 Cal.Rptr. 909 ]; see § 30514, subds. (a), (b); Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 410-411 [ 71 Cal.Rptr.3d 522 ]; Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1192 [ 72 Cal.Rptr.3d 98 ]; Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 86 [ 60 Cal.Rptr.2d 402 ].) Moreover, when the Commission consider

2008It can approve or disapprove but it cannot itself draft any part of the coastal plan.’ ” (Yost v. Thomas, supra, 36 Cal.3d at p. 572 , quoting City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 [ 183 Cal.Rptr. 909 ]; see § 30514, subds. (a), (b); Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 410-411 [ 71 Cal.Rptr.3d 522 ]; Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1192 [ 72 Cal.Rptr.3d 98 ]; Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 86 [ 60 Cal.Rptr.2d 402 ].) Moreover, when the Commission consider

2008It can approve or disapprove but it cannot itself draft any part of the coastal plan.’ ” (Yost v. Thomas, supra, 36 Cal.3d at p. 572 , quoting City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 [ 183 Cal.Rptr. 909 ]; see § 30514, subds. (a), (b); Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 410-411 [ 71 Cal.Rptr.3d 522 ]; Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1192 [ 72 Cal.Rptr.3d 98 ]; Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 86 [ 60 Cal.Rptr.2d 402 ].) Moreover, when the Commission consider

2008(Ocean Harbor House Homeowners Assn. v. California Coastal Com. (2008) 163 Cal.App.4th 215, 225, fn. 6 [ 77 Cal.Rptr.3d 432 ] [recognizing that decisions of the Commission may be “ ‘different than those proposed by the staff in the staff recommendation’ ”]; Benson v. California Coastal Com. (2006) 139 Cal.App.4th 348, 354 [ 42 Cal.Rptr.3d 580 ] [staff recommendation not “binding” on Commission]; see Regs., § 13090, subd. (d).) Finally, we reject McAllister’s claim that adopting a different standard at the de novo hearing impermissibly amended the Big Sur Land Use Plan without providing notice

2008(Ocean Harbor House Homeowners Assn. v. California Coastal Com. (2008) 163 Cal.App.4th 215, 225, fn. 6 [ 77 Cal.Rptr.3d 432 ] [recognizing that decisions of the Commission may be “ ‘different than those proposed by the staff in the staff recommendation’ ”]; Benson v. California Coastal Com. (2006) 139 Cal.App.4th 348, 354 [ 42 Cal.Rptr.3d 580 ] [staff recommendation not “binding” on Commission]; see Regs., § 13090, subd. (d).) Finally, we reject McAllister’s claim that adopting a different standard at the de novo hearing impermissibly amended the Big Sur Land Use Plan without providing notice

1992In that case we held the trial court retained jurisdiction to resentence the defendant. ( 52 Cal.2d 521, 525, 536 .) We observed in People v. Thomas, supra, 52 Cal.2d 521 , that the “clause” of the McAllister rule prohibiting alteration of the sentence after entry in the minutes of the court is an adaptation to our courts of the common law rule that the trial court may change its judgment only during the term in which the judgment was rendered, but not thereafter. 14 (Id. at p. 530; see Bronson v. Schulten (1881) 104 U.S. (14 Otto) 410, 415 [ 26 L.Ed. 797 ]; Bell v. Thompson (1862) 19 Cal. 706

1992In that case we held the trial court retained jurisdiction to resentence the defendant. ( 52 Cal.2d 521, 525, 536 .) We observed in People v. Thomas, supra, 52 Cal.2d 521 , that the “clause” of the McAllister rule prohibiting alteration of the sentence after entry in the minutes of the court is an adaptation to our courts of the common law rule that the trial court may change its judgment only during the term in which the judgment was rendered, but not thereafter. 14 (Id. at p. 530; see Bronson v. Schulten (1881) 104 U.S. (14 Otto) 410, 415 [ 26 L.Ed. 797 ]; Bell v. Thompson (1862) 19 Cal. 706

1992(Id. at p. 455; see Holder v. Superior Court, supra, 1 Cal.3d 779, 783 .) 19 The McAllister rule was enunciated a number of years prior to the enactment of section 1170, subdivision (d)’s statutory predecessor, which was added in 1963 to the former Indeterminate Sentence Law (§ 1168) and provided that, upon sentence and commitment, the court was authorized to recall the commitment and release the defendant on probation under supervision pursuant to section 1203.

1992(Id. at p. 455; see Holder v. Superior Court, supra, 1 Cal.3d 779, 783 .) 19 The McAllister rule was enunciated a number of years prior to the enactment of section 1170, subdivision (d)’s statutory predecessor, which was added in 1963 to the former Indeterminate Sentence Law (§ 1168) and provided that, upon sentence and commitment, the court was authorized to recall the commitment and release the defendant on probation under supervision pursuant to section 1203.

1992(E.g., People v. Getty (1975) 50 Cal.App.3d 101, 107-108 [ 123 Cal.Rptr. 704 ]; People v. Hartsell, supra, 34 Cal.App.3d 8, 12-15 [trial court could not effectively resentence by adding prior convictions to abstract of judgment, after the judgment was pronounced orally and was entered in the minutes and defendant already had been restrained by the sentence].) In People v. Thomas, supra, 52 Cal.2d 521 , we had occasion to review the elements of the McAllister rule in the circumstance where, during the morning court session, the trial court orally pronounced sentence to a term of incarceration i

1992(E.g., People v. Getty (1975) 50 Cal.App.3d 101, 107-108 [ 123 Cal.Rptr. 704 ]; People v. Hartsell, supra, 34 Cal.App.3d 8, 12-15 [trial court could not effectively resentence by adding prior convictions to abstract of judgment, after the judgment was pronounced orally and was entered in the minutes and defendant already had been restrained by the sentence].) In People v. Thomas, supra, 52 Cal.2d 521 , we had occasion to review the elements of the McAllister rule in the circumstance where, during the morning court session, the trial court orally pronounced sentence to a term of incarceration i

1992(E.g., People v. Getty (1975) 50 Cal.App.3d 101, 107-108 [ 123 Cal.Rptr. 704 ]; People v. Hartsell, supra, 34 Cal.App.3d 8, 12-15 [trial court could not effectively resentence by adding prior convictions to abstract of judgment, after the judgment was pronounced orally and was entered in the minutes and defendant already had been restrained by the sentence].) In People v. Thomas, supra, 52 Cal.2d 521 , we had occasion to review the elements of the McAllister rule in the circumstance where, during the morning court session, the trial court orally pronounced sentence to a term of incarceration i

1992(E.g., People v. Getty (1975) 50 Cal.App.3d 101, 107-108 [ 123 Cal.Rptr. 704 ]; People v. Hartsell, supra, 34 Cal.App.3d 8, 12-15 [trial court could not effectively resentence by adding prior convictions to abstract of judgment, after the judgment was pronounced orally and was entered in the minutes and defendant already had been restrained by the sentence].) In People v. Thomas, supra, 52 Cal.2d 521 , we had occasion to review the elements of the McAllister rule in the circumstance where, during the morning court session, the trial court orally pronounced sentence to a term of incarceration i

1992I, § 15; People v. Foley (1985) 170 Cal.App.3d 1039, 1047-1048 [ 216 Cal.Rptr. 865 ].) In considering the applicability of this component of the McAllister rule in People v. Thomas, supra, 52 Cal.2d 521 , we recognized that execution of the defendant Thomas’s sentence had not yet commenced because, even though a deputy sheriff had transported the defendant to the county jail following oral pronouncement of sentence, the defendant was ordered returned to court (and left the jail for return to court) prior to the time a remanding order prescribing county jail time was received by the sheriff’s b

1992I, § 15; People v. Foley (1985) 170 Cal.App.3d 1039, 1047-1048 [ 216 Cal.Rptr. 865 ].) In considering the applicability of this component of the McAllister rule in People v. Thomas, supra, 52 Cal.2d 521 , we recognized that execution of the defendant Thomas’s sentence had not yet commenced because, even though a deputy sheriff had transported the defendant to the county jail following oral pronouncement of sentence, the defendant was ordered returned to court (and left the jail for return to court) prior to the time a remanding order prescribing county jail time was received by the sheriff’s b

1959(United States v. Bens (1931), 282 U.S. 304, 307 [ 51 S.Ct. 113 , 75 L.Ed. 354 ]; see also Yates v. United States (1958), 356 U.S. 363, 366 [ 78 S.Ct. 766 , 2 L.Ed.2d 837 ] ; City of Vernon v. Superior Court (1952), 39 Cal.2d 839, 843 [3] [ 250 P.2d 241 ].) 6 In the morning of March 2, 1936, McAllister was sentenced to pay a fine in installments commencing June 1.

1959(United States v. Bens (1931), 282 U.S. 304, 307 [ 51 S.Ct. 113 , 75 L.Ed. 354 ]; see also Yates v. United States (1958), 356 U.S. 363, 366 [ 78 S.Ct. 766 , 2 L.Ed.2d 837 ] ; City of Vernon v. Superior Court (1952), 39 Cal.2d 839, 843 [3] [ 250 P.2d 241 ].) 6 In the morning of March 2, 1936, McAllister was sentenced to pay a fine in installments commencing June 1.

1959(United States v. Bens (1931), 282 U.S. 304, 307 [ 51 S.Ct. 113 , 75 L.Ed. 354 ]; see also Yates v. United States (1958), 356 U.S. 363, 366 [ 78 S.Ct. 766 , 2 L.Ed.2d 837 ] ; City of Vernon v. Superior Court (1952), 39 Cal.2d 839, 843 [3] [ 250 P.2d 241 ].) 6 In the morning of March 2, 1936, McAllister was sentenced to pay a fine in installments commencing June 1.

1959(United States v. Bens (1931), 282 U.S. 304, 307 [ 51 S.Ct. 113 , 75 L.Ed. 354 ]; see also Yates v. United States (1958), 356 U.S. 363, 366 [ 78 S.Ct. 766 , 2 L.Ed.2d 837 ] ; City of Vernon v. Superior Court (1952), 39 Cal.2d 839, 843 [3] [ 250 P.2d 241 ].) 6 In the morning of March 2, 1936, McAllister was sentenced to pay a fine in installments commencing June 1.

1959But, defendant says, he was “restrained” under the original sentence, and clause [3] of the McAllister rule (p. 526 [2] of 15 Cal.2d) states that “if the defendant . . . has been restrained by the sentence imposed, then the court is without jurisdiction to vacate, add to, or in any manner modify the sentence originally pronounced.” This clause [3] was stated to comprehend two decisions (In re Sullivan (1906), 3 Cal.App. 193, 197 [ 84 P. 781 ] ; In re Garrity (1929), supra, 97 Cal.App. 372, 375 ), relied upon by the defendant McAllister, which said that “The moment legal restraint was imposed a

1959But, defendant says, he was “restrained” under the original sentence, and clause [3] of the McAllister rule (p. 526 [2] of 15 Cal.2d) states that “if the defendant . . . has been restrained by the sentence imposed, then the court is without jurisdiction to vacate, add to, or in any manner modify the sentence originally pronounced.” This clause [3] was stated to comprehend two decisions (In re Sullivan (1906), 3 Cal.App. 193, 197 [ 84 P. 781 ] ; In re Garrity (1929), supra, 97 Cal.App. 372, 375 ), relied upon by the defendant McAllister, which said that “The moment legal restraint was imposed a

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959(See People v. Burke (1956), 47 Cal.2d 45, 50-53 [ 301 P.2d 241 ] [sentencing court could strike prior conviction]; People v. Schneider (1939), 36 Cal.App.2d 292, 297 [8] [ 98 P.2d 215 ] [failure to find on prior conviction amounts to sentencing defendant as first offender].) 5 Literal application of the McAllister rule would forbid mitigation of punishment in circumstances where mitigation is otherwise proper.

1959(See People v. Burke (1956), 47 Cal.2d 45, 50-53 [ 301 P.2d 241 ] [sentencing court could strike prior conviction]; People v. Schneider (1939), 36 Cal.App.2d 292, 297 [8] [ 98 P.2d 215 ] [failure to find on prior conviction amounts to sentencing defendant as first offender].) 5 Literal application of the McAllister rule would forbid mitigation of punishment in circumstances where mitigation is otherwise proper.

1959(United States v. Bens (1931), 282 U.S. 304, 307 [ 51 S.Ct. 113 , 75 L.Ed. 354 ]; see also Yates v. United States (1958), 356 U.S. 363, 366 [ 78 S.Ct. 766 , 2 L.Ed.2d 837 ] ; City of Vernon v. Superior Court (1952), 39 Cal.2d 839, 843 [3] [ 250 P.2d 241 ].) 6 In the morning of March 2, 1936, McAllister was sentenced to pay a fine in installments commencing June 1.

1959(United States v. Bens (1931), 282 U.S. 304, 307 [ 51 S.Ct. 113 , 75 L.Ed. 354 ]; see also Yates v. United States (1958), 356 U.S. 363, 366 [ 78 S.Ct. 766 , 2 L.Ed.2d 837 ] ; City of Vernon v. Superior Court (1952), 39 Cal.2d 839, 843 [3] [ 250 P.2d 241 ].) 6 In the morning of March 2, 1936, McAllister was sentenced to pay a fine in installments commencing June 1.

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959(See People v. Burke (1956), 47 Cal.2d 45, 50-53 [ 301 P.2d 241 ] [sentencing court could strike prior conviction]; People v. Schneider (1939), 36 Cal.App.2d 292, 297 [8] [ 98 P.2d 215 ] [failure to find on prior conviction amounts to sentencing defendant as first offender].) 5 Literal application of the McAllister rule would forbid mitigation of punishment in circumstances where mitigation is otherwise proper.

1959(See People v. Burke (1956), 47 Cal.2d 45, 50-53 [ 301 P.2d 241 ] [sentencing court could strike prior conviction]; People v. Schneider (1939), 36 Cal.App.2d 292, 297 [8] [ 98 P.2d 215 ] [failure to find on prior conviction amounts to sentencing defendant as first offender].) 5 Literal application of the McAllister rule would forbid mitigation of punishment in circumstances where mitigation is otherwise proper.

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju

1959The McAllister dictum of clause [3] has been repeated, still as dictum, in the cases of In re Pedrini (1949), 33 Cal.2d 876, 878-890 [1] [ 206 P.2d 699 ]; People v. Kersten (1943), 59 Cal.App.2d 172, 173-174 [1] [ 138 P.2d 780 ]; People v. Williams (1949), 93 Cal.App.2d 777, 779 [1] [ 209 P.2d 949 ]; and In re Graham (1958), 160 Cal.App.2d 845, 846 [1] [ 325 P.2d 499 ], Also the Sullivan and Garrity eases and People v. Ysabel (1938), 28 Cal.App.2d 259, 261 [4] [ 82 P.2d 476 ], and In re Fontino (1933), 135 Cal.App. 466, 468 [2] [ 27 P.2d 413 ], suggest that the sentencing court exhausts its ju