People v. Stoliker

• Decision Date: 18 May 1961
• Docket Number: Cr. 7463
• Citation: 192 Cal.App.2d 263,13 Cal.Rptr. 437
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence STOLIKER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 437

13 Cal.Rptr. 437

192 Cal.App.2d 263

PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence STOLIKER, Defendant and Appellant.

Cr. 7463.

District Court of Appeal, Second District, Division 2, California.

May 18, 1961.

Lawrence Stoliker, in pro. per.

Stanley Mosk, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

In a petition for a writ of error coram nobis appellant contends that a judgment of conviction and sentence were imposed upon him by the State of California without proper jurisdiction and he urges that the conviction and sentence be vacated, set aside, voided and expunged from the record. His writ was denied by the Los Angeles Superior Court and he appeals.

In 1955 appellant was arrested in California on a charge of robbery. Shortly thereafter, pursuant to a writ of habeas corpus ad prosequendum issued by the United States District Court for the Southern District of California, he was delivered to the federal authorities for trial on federal charges involving the receiving of, and failure to register, a machine gun. In March, 1955, he was convicted of these charges in the United States District Court. Judgment was pronounced imposing two five-year consecutive sentences, and he was committed to the custody of the Attorney General or his authorized representative, for imprisonment.

Appellant was then redelivered to the state authorities, and arraigned in the superior court on April 7, 1955, on eight counts of armed robbery. After he entered pleas of guilty on two counts, admitting that he was armed at the times the offenses were committed, the remaining six counts were dismissed. On May 12, 1955, appellant was sentenced on the robbery charges. Being informed of the prior federal judgment, the trial judge ordered that the sentences on the two robbery counts run consecutively and that said sentences run 'concurrently with any other sentence now serving.'

Appellant was then delivered into the custody of the warden of the state prison at Folsom to serve the robbery sentences. He thereafter instituted a habeas corpus proceeding in which he sought transfer from the custody of the warden of the state prison to the custody of the federal authorities in order that he might serve his sentence under the federal judgment of conviction, and thereby gain the benefit of the concurrent sentence provision of the state judgment. Our Supreme Court sustained appellant's position in the habeas corpus proceeding and ordered that appellant be delivered into the custody of the proper federal authorities for the purpose of serving his sentence under the federal judgment of conviction. The reasons for the ruling were thus summarized: 'Apparently under the federal rules the computation of time on a federal sentence begins to run only from 'the date on which [the prisoner] is received at the penitentiary, reformatory or jail for service of [the] sentence.' (Zerbst v. McPike, 5 Cir., 97 F.2d 253, 254; see also 18 A.L.R.2d 511, 514-516.) Therefore petitioner's continued imprisonment in the state prison will compel his serving his state and federal sentences consecutively although the sole judgment of conviction under which he is now held in the state prison clearly provides that these sentences be served concurrently. We have therefore concluded that petitioner is entitled to have his custody transferred to the federal authorities.' In re Stoliker, 49 Cal.2d 75, 78, 315 P.2d 12, 14.

As noted in that decision (at page 77 of 49 Cal.2d at page 13 of 315 P.2d) with reference to the state judgment of conviction: 'The validity of the judgment, however, is conceded by petitioner and he does not seek to escape the burden thereby imposed upon him.' Appellant now contends, however, that the California judgment and sentence were improper because the state had no jurisdiction over him after his release to the federal authorities under the writ of habeas corpus ad prosequendum. He argues (1) that the release under that writ was a complete relinquishment of jurisdiction; (2) that, in order for the state to reacquire jurisdiction once federal sentence was imposed, it was necessary to obtain the consent of the United States Attorney General; and (3) that such consent was never obtained.

It is doubtful whether coram nobis lies here (People v. Conley, 115 Cal.App.2d 749, 750, 252 P.2d 716; People v. Gatewood, 182 Cal.App.2d 724, 726-728, 6 Cal.Rptr. 447; People v. Ayala, 138 Cal.App.2d 243, 246, 291 P.2d 517); but we prefer to consider the matter upon the merits as if properly raised.

The appellant's contention is without merit. It is apparent that he has misconstrued the meaning and effect of the writ of habeas corpus ad prosequendum. '[T]he writ of habeas corpus ad prosequendum has been utilized to bring a prisoner incarcerated under sentence by one sovereignty to trial for alleged violation of the laws of the other sovereignty. * * * A good statement of the operation and extent of the writ appears in Lunsford v. Hudspeth, 10 Cir., 126 F.2d 653, 655: '* * * The privileges granted by this flexible rule of comity should and must be respected by the sovereignty to which it is made available, and this respectful duty is reciprocal, whether federal or state, because neither sovereignty has the power to override it. Under the free exercise of this rule, no right or immunity granted by the constitution, laws, or treaties of the United States, is invaded or impaired.'' United States ex rel. Moses v. Kipp, 7 Cir. 232 F.2d 147, 150.

The writ was honored by the state authorities as a matter of comity between the two sovereigns. United States ex rel. Moses v. Kipp, supra, 232 F.2d 147, 150; and cases cited therein.

In Lunsford v. Hudspeth, 10 Cir. 126 F.2d 653, the federal court faced a similar problem. There the prisoner, who had been in the custody of the Oklahoma State prison authorities, was released to the Federal court upon a writ of habeas corpus ad prosequendum, and it was contended that the state thereafter lost jurisdiction over the defendant. At page 655 the court said: '[I]t was within the power of the Federal Court to demand and the Warden of the Oklahoma State Penitentiary to grant temporary relinquishment of custody and control for purposes of trial in...