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TORRES v. DEPARTMENT OF CORRECTIONS & REHABILITATION

No. B242586.

217 Cal.App.4th 844 (2013)

158 Cal. Rptr. 3d 876

NICHOLAS TORRES, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent.

Court of Appeals of California, Second District, Division Six.

July 3, 2013.

Attorney(s) appearing for the Case

John E. Sweeney & Associates and John E. Sweeney for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Vickie P. Whitney and Jose A. Zelidon-Zepeda, Deputy Attorneys General, for Defendant and Respondent.

OPINION

YEGAN, J. —

The traditional function of a petition for writ of habeas corpus is to test the legality of actual governmental restraint of the person. Formerly, there was a requirement of actual physical confinement. Our California Supreme Court "relaxed" this rule and designed the concept of "constructive custody" to allow a parolee, who was not actually physically confined, to prosecute the writ. (In re Marzec (1945) 25...

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