Petitioner asked a writ of mandate to compel the Adult Authority and the warden of the state prison in which he is incarcerated to effect his immediate release. Upon appointment of counsel on his behalf, the petition has been altered to one for habeas corpus, respondents have regarded it as such, and so do we.
The facts are these: On January 23, 1959, petitioner was convicted, on plea of guilty, of violation of section 4532, subdivision (a), of the Penal Code (escape without violence from an industrial farm). The offense was then punishable by a term of six months to five years in state prison. On January 29, 1959, petitioner was delivered to custody of the Department of Corrections. His maximum term, therefore, would expire January 28, 1964.
On October 19, 1959, Adult Authority fixed his term at two and a half years, and granted parole effective December 11, 1959. On September 1, 1960, while he was on parole, petitioner was arrested for an offense, for which he served a term in the county jail in Los Angeles. The sentence was not
On August 25, 1960, the Adult Authority took this action: "Parole suspended and return to prison ordered for the causes set forth in the attached Board Report with the understanding that if the Court deems a county jail sentence sufficient for the current offense, the Adult Authority will again consider the matter at the termination of said jail sentence for possible reinstatement on parole." (Italics supplied.)
On June 30, 1961, the Adult Authority again acted on petitioner's parole: "Reinstate on parole as of 6-29-61. Term refixed at 3 1/2 years to extend period of parole supervision." (Term as refixed would expire July 21, 1962.)
On August 17, 1961, this action was taken: "Parole cancelled — return to prison ordered for the reasons set forth in the report of which this order is a part. (Term refixed at maximum in accordance with Resolution adopted 3-6-51.)"
Respondents have set petitioner's current release date as December 9, 1964, which is about 10 1/2 months later than the date of the original maximum sentence.
Section 3064 of the Penal Code provides: "From and after the suspension or revocation of the parole of any prisoner and until his return to custody he shall be deemed an escape and fugitive from justice and no part of the time during which he is an escape and fugitive from justice shall be part of his term."
Section 669 of the same code provides: "When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently, or whether the imprisonment to which he is or had been sentenced upon the second or other subsequent conviction shall
"The State Board of Prison Directors shall advise the court pronouncing the second or other subsequent judgment of the existence of all prior judgments against the defendant, the terms of imprisonment upon which have not been completely served."
The Attorney General contends that petitioner's parole was suspended between August 25, 1960, and June 29, 1961, and that during this period he was absent from the state prison and is to be deemed an escape.
Respondents further contend that petitioner could have compelled his own return to state prison by legal process, but failed to do so, and thus was out of the actual or constructive custody of the prison authorities.
Petitioner contends that the effect of the combined action and inaction of the state authorities will, unless this court grants him relief, operate to impose consecutive sentences upon him, although the court's sentence to the county jail was not made to run consecutively, and, therefore, was a concurrent sentence.
Respondents argue, however, that under section 3064, petitioner is not entitled to have the jail time counted because, although his parole had been suspended, he had not returned to custody of the state prison authorities.
Of course, he could not have gone back to prison on his own without incurring another escape charge. But, says the Attorney General, he could have instituted legal proceedings to have compelled his return to the prison (In re Forbes, supra, 108 Cal.App. 683; In re Stoliker, 49 Cal.2d 75 [315 P.2d 12]), and, say respondents, petitioner was obliged to do this if he wished to get credit for his time.
This seems to have been the rule in the brief period when sentences were consecutive unless they had been made concurrent,
Besides, the Adult Authority, knowing where petitioner was, in jail, had actually ordered that he be returned to the prison, but did not execute its own order. It would seem that if the sentences were not to run concurrently, it would be the duty of the sheriff to deliver the prisoner at once, and of the prison authorities to see to it that he did. (See 38 Ops.Cal. Atty.Gen. 132; Pen.Code, § 3001; Ex parte McGuire, 135 Cal. 339 [67 P. 327, 87 Am.St.Rep. 105].) Respondents answer that the order was not an outright order of return, because it had the qualifying language that the order is "with the understanding that if the Court deems a county jail sentence sufficient for the current offense, the Adult Authority will again consider the matter at the termination of said jail sentence for possible reinstatement on parole." But return to prison was either ordered or it was not ordered. Apparently, what the Authority was trying to do was to say that petitioner was ordered returned, but to abstain from effectuating the order, to suggest to the court a county jail sentence, and to hold before petitioner the possibility of further release on parole, possibly to be made retroactive. With this before him, petitioner would hardly insist that the order be executed. He might well assume that under section 669 as it now stands, and as it has been since 1931, his prison sentence was running concurrently with his jail sentence.
Respondents cite In re Payton, 28 Cal.2d 194 [169 P.2d 361] (1946) as a case subsequent to the major amendment of section 669, in which the court held that a period of 35 days between suspension of the prisoner's parole and his return to prison must be added to the period of his sentence (p. 196). In the Payton case, however, there was no order of the Board of Prison Terms and Paroles directing return to the state prison accompanying the suspension; the order of suspension was preliminary in nature, pending investigation of the charge (p. 197); and even before the board, upon full investigation, affirmed its preliminary order of suspension, the prisoner was returned to the state prison. Payton was held by the local authorities pending further order by the board, and although during part of the time he was serving a misdemeanor sentence, there is nothing in the case to show the duration of this sentence, and no point was made in the case of application of section 669.
The prisoner, too, about to be sentenced, and his counsel may present their reasons for concurrent sentences. Perhaps a probation officer's presentence report is to be had. All of
If this, a literal following of section 669 in this case, conflicts with a literal interpretation of section 3064, we believe it is to be preferred as the more judicial procedure, the one better suited to protect the rights of all than the other one with its dubious order, its designation of a man in actual and known custody as an "escape," its requirement of initiative by the prisoner, an initiative difficult for the prisoner to know the need of, and rather an unnatural one, anyway, and its imposing of consecutive sentences in fact where in law they were declared concurrent.
The writ is granted and the petitioner is ordered released from custody forthwith.
Draper, P.J., and Salsman, J., concurred.