Crim. No. 1688.
July 11, 1911.
APPLICATION for a Writ of Habeas Corpus directed to the Warden of the California state prison at Folsom.
The facts are stated in the opinion of the court.
Petitioner, in pro per.
R.C. Van Fleet, Deputy Attorney-General, for Respondent.
From the return made to the court by the warden of the California state prison at Folsom, in response to the writ of habeas corpus issued herein, and the matters alleged in the petition for the writ, which were admitted by the attorney-general to be true, it was confessed by the attorney-general and satisfactorily appeared to the court that the petitioner was entitled to be discharged from custody. It was accordingly so ordered. That the reasons for such action may appear of record, this opinion is filed.
The petitioner was convicted of a felony, and adjudged to be imprisoned therefor for a specified term in the state prison. He was accordingly imprisoned in the state prison for a portion of such term, and then allowed his liberty on parole. While at large on parole he was charged with another felony, and convicted thereof. Upon this conviction, he was again adjudged to suffer imprisonment in the state prison for a term of years. He served this term in the state prison. At the expiration thereof, he had been imprisoned in the state prison, including the time he had been at large on parole, for a time longer than the term prescribed by the first judgment. He was nevertheless retained in custody upon the theory that the two judgments did not run concurrently and that there was still unsatisfied by imprisonment a portion of such original judgment.
It cannot be disputed that the time during which the petitioner was at liberty on parole must be credited to him as time served on the original judgment. It may be conceded that his parole was revoked when he was arrested for the subsequent offense. But when again imprisoned in the state prison, after conviction of such subsequent offense, he was imprisoned not only under the second judgment, but also under the first judgment. In this state, there are apparently only two cases in which judgments of imprisonment in the state prison do not run concurrently. These are the cases specified in sections 669 and 105 of the Penal Code. Neither of these sections is applicable under the facts of this case. It is settled by the decisions that in all other cases, the judgments run concurrently. (Ex parte Morton, 132 Cal. 346, [ 64 P. 469]; Ex parte McGuire, 135 Cal. 339, [87 Am. St. Rep. 105, 67 P. 327].)
It follows that at the date of this petition, the petitioner had actually satisfied both judgments, and there was no legal ground for his retention in custody.