People v. McNabb

In People v. McNabb (1935) 3 Cal. 2d 441, the California Supreme Court addressed a fact situation similar to the case at bar. At the time of the assault, the defendant in People v. McNabb was serving out an uncompleted fixed term sentence as a parole violator. However, the defendant had been returned to prison upon two convictions for first degree robbery committed while on parole, with an indeterminate sentence of not less than five years. People v. McNabb (3 Cal. 2d at p. 457.) The Supreme Court ruled that at the time of the assault the defendant was undergoing life sentence within the meaning of former section 246, because, had the defendant "been discharged or released from serving the uncompleted terms by a writ of habeas corpus or by pardon he would have still been held as a prisoner serving a life term on said later commitments." (McNabb, at p. 457.) In other words, "the prisoner is undergoing a life sentence whatever may happen." (Ibid.)