Altstatt, In re

Decision Date19 May 1964
Citation38 Cal.Rptr. 616,227 Cal.App.2d 305
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re Robert Turner ALTSTATT on Habeas Corpus. Crim. 4557.

Robert M. Brilliant, Albany (under appointment of the District Court of Appeal), for petitioner.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Michael J. Phelan, Deputy Attys. Gen., San Francisco, for respondent.

DRAPER, Presiding Justice.

Petitioner, serving a term in San Quentin prison for robbery, seeks by this habeas corpus proceeding to compel his transfer to custody of federal authorities in order that his terms may run concurrently for the some 487 days remaining to be served on his federal sentence.

In 1958, he was convicted in the United States District Court, San Diego, of smuggling marijuana (21 U.S.C. § 176a). He was sentenced to 5 years in federal prison, was paroled in 1962, and soon was arrested for robbery. He was found guilty in superior court, probation was denied, and he was sentenced to state prison for the term prescribed by law, i. e., not less than 5 years. The federal conviction was charged and admitted, the issuance of a federal 'hold' or 'detainer' is described in the probation report, and the sentencing superior judge concededly knew of both. His judgment, however, does not provide that the two sentences shall be served either concurrently or consecutively.

If the state court sentence expressly provided that it should run concurrently with the federal sentence, petitioner would be entitled to transfer to federal custody as the sole means of effecting such concurrency (In re Stoliker, 49 Cal.2d 75, 315 P.2d 12; In re McClure, 192 Cal.App.2d 38, 13 Cal.Rptr. 298; see also People v. Massey, 196 Cal.App.2d 230, 236-239, 16 Cal.Rptr. 402).

In the absence of express direction in the later judgment, the term of imprisonment on a second conviction 'whether in the same * * * court or in different * * * courts' shall run concurrently with the term to be served on the earlier conviction (Pen.Code, § 669). Our question is whether the statute applies when the first sentence is by a federal court, or only when it is by a California court. Stoliker, McClure and Massey dealt with state court judgments expressly directing concurrency, and thus did not reach our issue.

In statutory construction, the interpretation resulting in concurrent sentences is favored (In re Stoliker, supra, 49 Cal.2d p. 77, 315 P.2d 12; In re Patton, 225 A.C.A. 117, 123, 36 Cal.Rptr. 864, and cases there cited). The express application of Section 669 to conviction in 'different proceedings or courts' has been judicially noted (In re Stoliker, supra, 49 Cal.2d p. 77, 315 P.2d 12; In re Roberts, 40 Cal.2d 745, 749, 255 P.2d 782), and reasonably warrants the interpretation urged by petitioner. Moreover, that construction comports with the legislative trend (see In re Radovich, 61 Cal.App.2d 177, 142 P.2d 325). For more than 30 years, trial judges have been aware of the rule that silence imports concurrency. It seems late to exclude from application of the rule an unexpired term, the existence of which is fully known to the sentencing judge, merely because it was imposed by another jurisdiction.

We are unimpressed by respondent's argument that a recent code amendment (Stats.1963, c. 1856, amending Pen.Code, § 2900) indicates a change in legislative intent. That amendment merely directs that when the 'California court orders that the California sentence shall run concurrently' with a sentence already being served elsewhere, the Director of Corrections shall designate a prison in the other jurisdiction for delivery of the prisoner to commence his California sentence. It facilitates and implements concurrency, and significantly fails to...

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17 cases
  • People v. Gulbrandsen
    • United States
    • California Court of Appeals Court of Appeals
    • May 2, 1989
    ...Cal.App.3d 815, 816, 150 Cal.Rptr. 430; In re Helpman (1968) 267 Cal.App.2d 307, 310, fn. 3, 72 Cal.Rptr. 753; In re Altstatt (1964) 227 Cal.App.2d 305, 307, 38 Cal.Rptr. 616.) Section 2900, subdivision (b)(2) also expressly recognizes that a California sentence may be made to run concurren......
  • Cozine v. Crabtree
    • United States
    • U.S. District Court — District of Oregon
    • July 2, 1998
    ...for service of the California sentence. See, e.g., In re Stoliker, 49 Cal.2d 75, 76, 315 P.2d 12, 13 (1957); In re Altstatt, 227 Cal.App.2d 305, 306, 38 Cal.Rptr. 616, 617 (1964). This ensures that the concurrent aspect of the sentence is made effectual and not nullified. Alternatively, if ......
  • Ward v. Brown
    • United States
    • U.S. District Court — Eastern District of California
    • August 29, 2012
    ...for service of the California sentence. See, e.g., In re Stoliker, 49 Cal.2d 75, 76, 315 P.2d 12, 13 (1957); In re Altstatt, 227 Cal.App.2d 305, 306, 38 Cal.Rptr. 616, 617 (1964). This ensures that the concurrent aspect of the sentence is made effectual and not nullified. Id. Alternatively,......
  • Hayes v. Superior Court
    • United States
    • California Supreme Court
    • December 6, 1971
    ...to start the running of the California term. (See In re Tomlin (1966) 241 Cal.App.2d 668, 670, 50 Cal.Rptr. 805; In re Altstatt (1964) 227 Cal.App.2d 305, 307, 38 Cal.Rptr. 616.) ...
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