Albright, In re

• Decision Date: 05 March 1982
• Docket Number: Cr. 23215
• Citation: 181 Cal.Rptr. 84,129 Cal.App.3d 504
• Court: California Court of Appeals Court of Appeals
• Parties: In re William ALBRIGHT on Habeas Corpus.

Page 84

181 Cal.Rptr. 84

129 Cal.App.3d 504

In re William ALBRIGHT on Habeas Corpus.

Cr. 23215.

Court of Appeal, First District, Division 3, California.

March 5, 1982.

Hearing Denied April 28, 1982.

Jeff Brown, Public Defender, City and County of San Francisco, Mary Ann Bannan-Haines, Deputy Public Defender, San Francisco, for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Herbert F. Wilkinson, Nancy Stewart, Deputy Attys. Gen., San Francisco, for respondent.

SCOTT, Associate Justice.

This petition seeks to set aside an extradition order by which petitioner is to be returned to Nevada for sentencing on a parole violation.

On January 18, 1977, petitioner William Albright was sentenced in the Washoe County Judicial District, Nevada, to six years in the Nevada State Prison for the crime of battery with a deadly weapon.

On January 30, 1978, in anticipation of being paroled, petitioner signed an Agreement To Return to Nevada when instructed by the proper authorities. This was signed in consideration of his being granted parole and the privilege of being under supervision in the State of California in accordance with the Interstate Parole and Probation Supervision Compact. The same document contained a waiver of extradition and an agreement not to contest any effort by any jurisdiction to return to the State of Nevada, signed by petitioner at the same time.

On March 7, 1978, petitioner was granted parole and, as part of his parole agreement, again signed an agreement to waive extradition and not contest any effort to return him to the State of Nevada.

On December 28, 1980, petitioner was arrested by the San Francisco Police Department for crimes committed in San Francisco, including possession of dynamite, possession of a weapon, assault with a deadly weapon, and kidnaping for ransom. On December 31, 1980, San Francisco authorities reported the arrest to the Nevada Department of Parole and Probation. The Nevada authorities issued a report recommending a retake warrant for petitioner's arrest and return to Nevada State Prison upon the adjudication of the pending California charges. On February 5, 1981, a retake warrant issued.

Petitioner pled guilty to the charge of false imprisonment here in California and was placed on probation on condition that he serve a sentence in the county jail. The jail sentence expired in June 1981, and extradition proceedings began after that.

On July 7, 1981, a hearing was held before the San Francisco Municipal Court on a complaint alleging petitioner to be a fugitive from justice. Petitioner was represented by counsel who objected to petitioner's delivery to Nevada on ground that the waiver of extradition signed by appellant in Nevada was not effective. Counsel conceded that appellant had signed the waiver. The court set August 7, 1981, for delivery of petitioner to the Nevada authorities. Before that date petitioner filed a petition for a writ of habeas corpus in the San Francisco Superior Court which was denied. This petition followed.

The order to show cause issued by the California Supreme Court, made returnable before this court, ordered the Sheriff of San Francisco County to show cause "why, if petitioner is to be extradited, his waiver executed out of state should not be deemed invalid in light of the requirements of Penal Code section 1555.1; In re Schoengarth [1967], 66 Cal.2d 295, 57 Cal.Rptr. 600, 425 P.2d 200; In re Patterson [1966], 64 Cal.2d 357, 363, 49 Cal.Rptr. 801, 411 P.2d 897; and In re Satterfield [1966], 64 Cal.2d 419, 422, 50 Cal.Rptr. 284, 412 P.2d 540; or, if return is sought pursuant to Penal Code § 11175 et seq., due process does not require that he be afforded a hearing at which he is represented by counsel, and may challenge the sufficiency of the demand for his return and/or his identity as the person sought. (See People v. Ramirez, [1979] 25 Cal.3d 260, 268-269, 158 Cal.Rptr. 316, 599 P.2d 622.)"

I. Extradition Act

Penal Code sections 1548 through 1558, the Uniform Criminal Extradition Act, provide the legal framework for extraditing fugitives from justice. Section 1555.1 specifies the manner in which an arrested person may waive extradition: "Any person arrested in this State charged with having committed any crime in another State or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the Governor's warrant provided for in this chapter and all other procedure incidental to extradition proceedings, by subscribing in the presence of a magistrate within this State a writing which states that he consents to return to the demanding State; provided, however, that before such waiver shall be subscribed by such person, the magistrate shall inform him of his rights to require the issuance and service of a warrant of extradition as provided in this chapter." (Emphasis added.)

Case law has reiterated the requirements that such a waiver be signed before a magistrate with proper admonitions (In re Schoengarth, supra, 66 Cal.2d at p. 303, 57 Cal.Rptr. 600, 425 P.2d 200) and that the waiver must be signed in the asylum state (In re Patterson, supra, 64 Cal.2d at p. 363, 49 Cal.Rptr. 801, 411 P.2d 897; In re Satterfield, supra, 64 Cal.2d at p. 421, 50 Cal.Rptr. 284, 412 P.2d 540).

The purported waiver in this case is a Nevada document apparently signed in Nevada and witnessed only by parole board and prison representatives. Clearly, it does not satisfy the requirements of Penal Code section 1555.1. We conclude that petitioner cannot be extradited to Nevada pursuant to the provisions of the Uniform Criminal Extradition Act (Pen.Code, §§ 1548-1558). The Attorney General does not argue otherwise, but only contends that the extradition procedures contained in the extradition act are not exclusive of less formal means of returning parole violators permitted to reside in California under the Uniform Act for Out-of-State Probationer or Parolee Supervision, enacted in California as Penal Code section 11175 et seq.

II. Out-of-State Parolee Supervision Act

The Uniform Act for Out-of-State Probationer or Parolee Supervision, Penal Code section 11175 et seq., invests the Governor with the authority to enter into agreements with other states for the transfer of parolees between states for supervision by the receiving state. Such an agreement has been entered into between California and Nevada. Subdivision (3) of section 11177 provides that one term of the compact should state: "(3) That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state. If at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense." (Emphasis added.)

In In re Tenner (1942) 20 Cal.2d 670, 128 P.2d 338, the California Supreme Court upheld the constitutionality of the Uniform Act for Out-of-State Parolee Supervision. There a parolee from Washington State Penitentiary was arrested in California and sought habeas corpus challenging the act. The Tenner court noted that the federal Constitution provided for extradition rights and that federal legislation had implemented the constitutional provision. It concluded, however, that "[n]either the terms of the constitutional provision nor the act of Congress making it effective indicate that the extradition procedure was intended to be exclusive." (Id., at p. 677, 128 P.2d 338.) The court further found that the parolee supervision act did not deprive the petitioner of his liberty without due process because he had had his day in court on the issue of guilt, and once convicted he had the right to reject the offer of parole and the conditions attached thereto. (Id., at p. 674, 128 P.2d 338.) Clearly the Uniform Act for Out-of-State Probationer or Parolee Supervision provides an alternative method by which an out-of-state parolee can be returned to the sending state.

We turn now to the second part of the question...