Portwood, In re

• Decision Date: 03 August 1965
• Docket Number: Cr. 3779
• Citation: 236 Cal.App.2d 321,45 Cal.Rptr. 862
• Court: California Court of Appeals Court of Appeals
• Parties: In re Fred C. PORTWOOD on Habeas Corpus.

Page 862

45 Cal.Rptr. 862

236 Cal.App.2d 321

In re Fred C. PORTWOOD on Habeas Corpus.

Cr. 3779.

District Court of Appeal, Third District, California.

Aug. 3, 1965.

Hearing Denied Sept. 29, 1965.

Alfred B. McKenzie, Carmichael, for appellant.

Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., Sacramento, for respondent.

FRIEDMAN, Justice.

Petitioner is a prisoner at Folsom State Prison. He seeks a writ of habeas corpus to secure his delivery to the prison authorities of Texas, there to complete a partially served Texas sentence.

Petitioner was paroled from a Texas prison in September 1959 with 2 years, 10 months and 25 days of a robbery sentence yet unserved. Less than 5 months later, on March 23, 1960, he was sentenced by the San Diego Superior Court on one count of first degree robbery and two counts of assault with a deadly weapon. Meanwhile, on March 10, 1960, the Texas authorities revoked his parole and indicated that he was 'wanted' as a parole violator.

At the time of sentencing petitioner the San Diego judge was aware of the incompleted Texas sentence. In sentencing petitioner the judge signed a printed form of judgment with typed insertions. We quote from that judgment, italicizing the typed insert: 'It is ordered that sentences shall be served in respect to one another as follows:

And that the sentence in this case shall run concurrently with relation to Counts Nos. 1, 2 and 3, and as to each (Note whether concurrent or consecutive as to each count); and in respect to any prior incomplete sentence(s) as follows: NOTE whether concurrent or consecutive as to all incomplete sentences from other jurisdictions);'

We note particuarly that the trial judge did not make any entry in the last blank space.

Apparently, under Texas law, petitioner cannot receive Texas credit for time served under a California judgment entered following the imposition of the Texas sentence. (Ex parte Spears, 154 Tex.Cr.R. 112, 235 S.W.2d 917, 18 A.L.R.2d 507.) He contends that under California law and by the legal effect of the California judgment, he will be entitled to California credit for time served in Texas; hence, his effort to gain readmission to the Texas prison system.

Under the so-called 'Stoliker rule' established by California case law, a California prisoner is entitled to be made available for delivery to the prison authorities of another jurisdiction, if his California commitment expressly decrees that the California sentence shall run concurrently with an unexpired sentence in the other jurisdiction. (In re Stoliker, 49 Cal.2d 75, 315 P.2d 12; People v. Massey, 196 Cal.App.2d 230, 236-269, 16 Cal.Rptr. 402; In re McClure, 192 Cal.App.2d 38, 13 Cal.Rptr. 298.) Recently, In re Altstatt, 227 Cal.App.2d 305, 38 Cal.Rptr. 616 extended the Stoliker rule to cover situations where the California commitment was silent on the subject of concurrency with the sentence in the other jurisdiction. That decision, with which we concur, was based upon Penal Code section 669, which provides that in the absence of express direction in the later judgment, the term of imprisonment on a second conviction shall run concurrently with the term to be served on the earlier conviction. As the court observed: '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.' (In re Altstatt, supra, 227 Cal.App.2d at p. 307, 38 Cal.Rptr. at p. 617.)

The San Diego judgment demonstrates that the sentencing court advisedly decreed concurrency of the three California counts and advisedly omitted any provision on the time relationship between the California and Texas sentences. By force of Penal Code section 669, petitioner's California sentence runs concurrently with the unexpired portion of his Texas sentence. He is thus entitled to be made available for delivery to the Texas authorities, so that the remaining time under his Texas sentence will be credited to his California sentence. The California Director of Corrections is authorized by Penal Code section 2900 to designate a California institution to which he may be returned, if his Texas confinement ends before the expiration of his California sentence. ¹

Seemingly, the 1963 amendment to section 2900 (fn. 1, supra) authorizes the Director of Corrections to accomplish administratively what the Stoliker rule accomplishes by a writ of habeas corpus. Possibly petitioner's resort to habeas...