Fluery, In re

• Decision Date: 06 November 1967
• Docket Number: Cr. 11116
• Citation: 63 Cal.Rptr. 298,432 P.2d 986,67 Cal.2d 600
• Court: California Supreme Court
• Parties: , 432 P.2d 986 In re Warren Elwood FLUERY on Habeas Corpus.

Page 298

63 Cal.Rptr. 298

67 Cal.2d 600, 432 P.2d 986

In re Warren Elwood FLUERY on Habeas Corpus.

Cr. 11116.

Supreme Court of California In Bank.

Nov. 6, 1967.

Warren Elwood Fluery, in pro. per., and Robert C. Anderson, Sacramento, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci and Horace Wheatley, Deputy Attys. Gen., for respondent.

TRAYNOR, Chief Justice.

Petitioner, an inmate of San Quentin Prison, applied for a writ of habeas corpus on the ground that the Adult Authority improperly refused him credit on his prison term for time spent in jail. The allegations of his petition and the Summary of Sentence Data prepared by the Department of Corrections showed that contrary to In re Patton, 225 Cal.App.2d 83, 87, 36 Cal.Rptr. 864, he was not credited for time served under a misdemeanor sentence that ran concurrently with his prison sentence and that contrary to Aguilera v. California Dept. of Corrections, 247 Cal.App.2d 150, 153, 55 Cal.Rptr. 292, he was not credited for time in jail under the restraint of Adult Authority orders. The alleged facts also gave rise to the question, expressly left open in Aguilera, whether a prisoner jailed under an Adult Authority order suspending or cancelling his parole and directing his return to prison can be denied credit for his time in jail on the theory that he was returned to prison without unreasonable delay.

We issued an order to show cause. Respondent warden filed his return showing that petitioner has now been credited with the disputed periods of jail time. Although the issuance of our order to show cause has resulted in this petitioner's receiving the relief he applied for, we deem it appropriate in our supervision of the administration of criminal justice to decide the questions he presented. Petitions for habeas corpus filed by other prisoners indicate that sentences are still being computed contrary to the holdings of Patton and Aguilera, and the question expressly undecided by Aguilera is a recurring problem important to other prisoners and the Adult Authority (See D. I. Chadbourne, Inc. v. Superior Court, 60 Cal.2d 723, 731, fn. 5, 36 Cal.Rptr. 468, 388 P.2d 700; County of Madera v. Gendron, 59 Cal.2d 798, 804, 31 Cal.Rptr. 302, 382 P.2d 342, 6 A.L.R.3d 555; Di Giorgio Fruit Corp. v. Dept. of Employment, 56 Cal.2d 54, 58, 13 Cal.Rptr. 663, 362 P.2d 487; In re Newbern, 55 Cal.2d 500, 505, 11 Cal.Rptr. 547, 360 P.2d 43; American Civil Liberties Union v. Board of Education, 55 Cal.2d 167, 181, 10 Cal.Rptr. 647, 359 P.2d 45, 94 A.L.R.2d 1259.)

Petitioner is serving a prison sentence for second degree burglary (maximum term 15 years; Pen.Code, § 461) that began September 5, 1958. In 1961 the Adult Authority released him on parole. On April 12, 1962, it cancelled his parole and ordered his return to prison. For seven days, until his return to prison on April 19, he was held in jail as a parole violator ordered returned to prison.

In 1963 petitioner was again paroled. On September 3, 1965, the Adult Authority suspended his parole and ordered his return to prison. He was at large for four days after the making of the order of September 3. From September 7, 1965, until March 10, 1966, he was in jail as a parole violator. Also during this time, under the name Howard Emerson Ellwood, he was tried for and convicted of possessing narcotics, granted probation, and from December 1, 1965, to March 1, 1966, was held in jail as a condition of probation as well as under the order of the Adult Authority. On March 10 he was removed from jail to state prison.

In May 1966 petitioner was again paroled. In October 1966, under the name Howard Emerson Ellwood, he was convicted of attempted burglary and sentenced to one year in the county jail. On December 28, 1966, while he was serving this jail sentence, the Adult Authority cancelled his parole and ordered his return to prison. On March 16, 1967, he was returned to prison.

At the time petitioner applied for habeas corpus the Adult Authority had computed all the time he spent in jail as 'at large' time not credited on his 1958 sentence. Penal Code, section 3064 provides that 'From and after the suspension or revocation of the parole of any prisoner and until his return to custody he shall be deemed an escapee and fugitive from justice and no part of the time during which he is an escapee and fugitive from justice shall be part of his term.' Although section 3064 refers to a prisoner's return to custody, not his return to state prison, we recently stated in summary of the substance of the statute that 'the time between a valid order of suspension and his actual return to state prison is not credited to his term.' (In re Hall, 63 Cal.2d 115, 117, 45 Cal.Rptr. 133, 135, 403 P.2d 389, 391.) Moreover, in In re Payton, 28 Cal.2d 194, 196, ...