Stoliker, In re, Cr. 6079

Decision Date13 September 1957
Docket NumberCr. 6079
CourtCalifornia Supreme Court
PartiesIn re Lawrence W. STOLIKER on Habeas Corpus.

Lawrence W. Stoliker, in pro. per.

Robert K. Barber, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., and Doris H. Maier, Deputy Atty. Gen., for respondent.

SPENCE, Justice.

In this habeas corpus proceeding petitioner seeks his transfer from the custody of the warden of the state prison at Folsom to the custody of the federal authorities in order that he may serve his sentence under his federal judgment of conviction and thereby gain the benefit of the provision of his state judgment of conviction relating to the concurrent running of his sentences.

Petitioner was arrested in this state on a charge of robbery. Shortly thereafter he was delivered by the state authorities to the federal authorities for trial on two federal charges involving the receiving of, and failure to register, a machine gun. On March 3, 1955, he was convicted on two counts in the United States District Court for the Southern District of California, Central Division, in proceeding numbered '24096 Criminal.' On March 14, 1955, 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.' The federal judgment further provided: 'It Is Further Ordered said sentences to run consecutively with any sentence imposed by any other court, for any other offense.'

Petitioner was then redelivered to the state authorities. He was arraigned in the state court on April 7, 1955, on two counts of armed robbery. After pleading guilty, he was sentenced on May 12, 1955. At the proceeding for sentence the trial judge was informed of the prior federal judgment of conviction, and it was urged that petitioner's state setences be made to run concurrently with his federal sentence. The sentences on the two robbery counts were then ordered by the trial judge to run consecutively, and the two consecutive sentences to run 'concurrently with any other sentence to which he is now subject.' The minute order entered by the clerk reads: 'Sentences as to Counts 1 and 2 are ordered to run Consecutively and are ordered to run concurrently with any other sentence now serving.'

Petitioner contends that he should be transferred to the federal authorities for the purpose of serving his federal sentence in order that the portion of his state judgment of conviction providing that his state sentences should run concurrently with the federal sentence may be made effectual and not be nullified. We are of the opinion that petitioner's contention should be sustained.

While the provision of the federal sentence that it should run 'consecutively with any sentence imposed by any other court, for any other offense,' might be construed to include future convictions, the propriety of such a construction to petitioner's prejudice would be questionable. Interpretations resulting in concurrent sentences when imposed by the same court are favored over those which make sentences run consecutively (In re Radovich, 61 Cal.App.2d 177, 142 P.2d 325; 70 A.L.R. 1511, 1512), and section 669 of the Penal Code 'permits the imposition of concurrent sentences when a defendant is convicted of two or more crimes * * * in different proceedings or courts' (In re Roberts, 40 Cal.2d 745, 749, 255 P.2d 782, 784, emphasis added.)

The Attorney General contends that petitioner is not entitled to the relief sought as 'he is presently confined under a due and valid judgment of the Los Angeles Superior Court.' The validity of the judgment, however, is conceded by petitioner and he does not seek to escape the burden thereby imposed upon him. His purpose in instituting this proceeding is merely to obtain the benefits of the concurrency provisions of his state judgment of conviction, the validity of which concurrency provisions is not challenged by the Attorney General. It is also apparently urged...

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49 cases
  • People v. Gulbrandsen
    • United States
    • California Court of Appeals
    • 2 Mayo 1989
    ...... (In re Stoliker (1957) 49 Cal.2d 75, 77-78, 315 P.2d 12; People v. Veasey (1979) 98 Cal.App.3d 779, 787, 159 Cal.Rptr. 755; People v. Seaman (1978) 86 Cal.App.3d ......
  • Cozine v. Crabtree
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 2 Julio 1998
    ...and to have the foreign prison designated as the place 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 ......
  • Ward v. Brown, 2:10–cv–0019 KJN.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 29 Agosto 2012
    ...1158]by the United States District Court. (In re Harris (1964) 60 Cal.2d 878 [36 Cal.Rptr. 468, 388 P.2d 700],6In re Stoliker (1957) 49 Cal.2d 75 [315 P.2d 12].) It is so ordered. Counsel for [plaintiff] should serve this order upon the warden having custody over [plaintiff] and may apply t......
  • Herman v. Brewer, 54893
    • United States
    • United States State Supreme Court of Iowa
    • 14 Enero 1972
    ...the prior sentences unless the trial judge determines within a specified period of time that it shall run consecutively. In re Stoliker (1957) 49 Cal.2d 75, 315 P.2d 12, held that the provisions of this section apply to cases in which the prior conviction was imposed by a federal court, and......
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