Haygood, In re

• Decision Date: 21 July 1975
• Docket Number: Cr. 17801
• Court: California Supreme Court
• Parties: , 537 P.2d 880 In re Frank HAYGOOD on Habeas Corpus.

Page 760

122 Cal.Rptr. 760

14 Cal.3d 802, 537 P.2d 880

In re Frank HAYGOOD on Habeas Corpus.

Cr. 17801.

Supreme Court of California In Bank.

July 21, 1975.

Frank Haygood, in pro. per., Ezra Hendon, Berkeley, under appointment by the Supreme Court, Stephen B. Bedrick and Treuhaft, Walker & Nawi, Oakland, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Eddie T. Keller and Gregory W. Baugher, Deputy Attys. Gen., for respondent.

WRIGHT, Chief Justice.

We issued an order to show cause in response to a petition for writ of habeas corpus prepared in propria persona by Frank Haygood, an inmate of the California State Prison at Folsom, alleging that the Department of Corrections and the Adult Authority had acted unlawfully in refixing certain of the terms to which he has been sentenced and in revoking credit for time served on another. Counsel was appointed for petitioner. His review of conviction and sentencing data relative to petitioner's confinement led him to conclude that additional issues should be raised on petitioner's behalf. By leave of the court a supplemental petition was filed and respondent Department of Corrections has replied to both the original and supplemental petitions, which we shall hereinafter refer to in the singular as the petition. We have concluded, based on the undisputed facts set out in the petition and the return thereto, that petitioner's terms at fixed by the Adult Authority (Authority) had been fully served prior to the date upon which the Authority last purported to extend them, and that notwithstanding any erroneous legal conclusions that may have influenced the Authority when it fixed those terms, petitioner is entitled to be discharged.

In 1946 petitioner was convicted of escape in violation of Penal Code section 4530. ¹ He was sentenced to the term prescribed by law which was then a term of imprisonment not exceeding 10 years. It is undisputed that petitioner was discharged from this 'original' term on June 29, 1953. ²

On March 24, 1949, petitioner was convicted of five counts of forgery in violation of section 470. He was sentenced to concurrent terms of 1 to 14 years' imprisonment. These 'A' terms ³ were concurrent with the 'O' (original) term and commenced on April 1, 1949, when petitioner was delivered to the custody of the Department of Corrections. ⁴

On April 23, 1956, petitioner was convicted of carrying a concealed weapon in violation of section 12021. The offense was committed while petitioner was serving his 'A' terms on parole. He was sentenced to a term not exceeding five years. This 'B' term, which was concurrent with the 'A' terms, commenced April 25, 1956. Although its records reflect no discharge from the 'A' and 'B' terms, but instead indicate service of more than 23 years on the 14-year maximum 'A' terms and 18 years on the 5-year maximum 'B' term, before this court respondent concedes that the maximum duration of the 'A' and 'B' terms was approximately April 1963 and May 1961, respectively. The Department of Corrections and the Adult Authority should, therefore, correct their records accordingly to reflect petitioner's discharge from the 'A' and 'B' terms.

On or about December 21, 1958, however, while he was still serving the 'A' and 'B' terms, petitioner escaped from a prison camp and shortly thereafter participated in a robbery. He was prosecuted first for the robbery and on January 5, 1959, was convicted and sentenced to a term of not less than one year for violation of section 211. This 'C' term, which was concurrent with the then uncompleted 'A' and 'B' terms, commenced January 8, 1959.

Petitioner then pleaded guilty to escape in violation of section 4531, which has since been repealed. ⁵ Two prior convictions charged in the information--the 1949 forgery and the 1956 concealed weapon convictions--were stricken prior to the plea. He was sentenced on April 14, 1959.

In sentencing petitioner for the escape the court orally recited that 'he be committed to the state prison for the term prescribed by law, the sentence to run at the time he would otherwise have been discharged.' The abstract of judgment, which erroneously included the stricken prior convictions, properly reflected the oral pronouncement of judgment. After printed language which read, 'It is ordered that the sentences shall be served in respect to one another as follows,' a section intended to apply only to sentences on multiple counts in the same judgment, the following typewritten entry appears: 'Sentence to commence at the time said defendant would otherwise have been discharged.' Following the printed entry 'and in respect to any prior incompleted sentence(s) as follows' a typewritten entry states, 'Same as above.' The instructions on the printed form direct the court to enter there its ruling on whether the new term is to be 'concurrent or consecutive to all incomplete sentences from other jurisdictions.' Notwithstanding the sentencing judge's use of the statutory language of section 4531 that the term commence when petitioner 'would otherwise have been discharged' from the terms he was serving at the time of the escape, i.e., the 'A' and 'B' terms, the Department of Corrections and the Adult Authority treated the escape term as consecutive not only to the 'A' and 'B' terms that petitioner was serving at the time of his escape, but also to the 'C' term for the robbery he committed After the escape.

On October 8, 1970, after petitioner had served the maximum permissible number of years on the 'A' and 'B' terms, the Adult Authority fixed petitioner's 'C' term at 10 years, and entered on its records an 'administrative' discharge of the 'C' term retroactive to January 8, 1969, the date upon which he had completed service of 10 years on that term. At the same time the Authority fixed petitioner's 'D' term at five and one-half years with a discharge date of July 8, 1974, and set a parole date of December 14, 1970. The Authority intended by this order to cause the 'D' term to commence retroactively as of January 8, 1969, the date of the discharge from the 'C' term.

The Authority suspended petitioner's parole on January 7, 1972. By operation of Adult Authority policies then in effect, that suspension automatically caused any incompleted terms to be refixed at maximum. On March 14, 1972, in conjunction with the formal revocation of parole, the Authority again fixed the 'C' term at 10 years, and this time fixed the 'D' term at 6 years with a January 8, 1975, expiration date. Petitioner was again released on parole, but on April 27, 1973, his parole was suspended, again causing his terms to be refixed at maximum. On December 13, 1973, parole was formally revoked. His terms have not been refixed at less than maximum since that date. Although petitioner had served the period from January 8, 1969, to April 27, 1973, on his 'D' term, the effect of refixing his 'C' term at the life maximum, according to respondent, was to deny him any credit on the 'D' term because that term could not commence until his discharge from the 'C' term. Therefore, although 16 years have passed since petitioner was sentenced on the escape conviction, and even though he had once been given credit for service of over 4 years on that term, respondent now considers him to be serving only the 'C' or robbery term. According to respondent, his 'D' or escape term has not commenced. Thus petitioner, having once reached the goal of 'administrative discharge' from his 'C' term, and having embarked on service of his 'D' term, like Sisyphus finds himself back again at the beginning, destined to endlessly repeat his own odyssey through the term-fixing process.

Petitioner challenges his continued imprisonment and respondent's assertion of authority over him on several grounds, but the first is dispositive. He claims that the 'D' term was consecutive Only to the 'A' (forgery) and 'B' (concealed weapon) terms and was concurrent with the 'C' (robbery) term. He argues that the order of the sentencing judge did not purport to make the 'D' term consecutive to the 'C' term, and that even had the judge attempted to order that the 'D' term be consecutive to the 'C' term, he lacked authority to do so. Following this theory he reasons that his 'C' term expired on January 8, 1969, as determined by the Adult Authority action of October 8, 1970, fixing it at 10 years. Based on the action of the same date fixing his 'D' term at five and one-half years, he reasons that this term, too, has expired since it commenced on the date he would otherwise have been discharged from the 'A' and 'B' terms he was serving at the time of the escape. Whether the 'D' term commenced in 1963 upon expiration of the statutory maximum of fourteen years for the 'A' term or in 1961 based on expiration of the eight-year 'A' term and five-year 'B' term that had been fixed by the Authority on October 6, 1958, and upon which expiration presumably he 'would otherwise have been discharged' need not be decided, since under either approach the five-and-one-half year 'D' term which the Authority set on October 8, 1970, would have been served no later than 1969.

Respondent contends that it continues to have jurisdiction over petitioner because he has not yet been discharged from either the 'C' or the 'D' term. Relying on In re Cowen (1946) 27 Cal.2d 637, 166 P.2d 279, and In re Byrnes (1948) 32 Cal.2d 843, 198 P.2d 685, it argues first that the 'D' term is consecutive to the 'C' term, and that since consecutive terms are considered to be a single, continuous term of imprisonment it was proper to refix petitioner's 'C' term even after he had been 'administratively discharged' therefrom because he had not yet completed the 'D' term. Alternatively, respondent argues that if because the 'C' and 'D' terms are concurrent rather than consecutive, Cowen and Byrnes do not control, it still has jurisdiction over...