Tinsley, Application of

• Citation: 2 Cal.Rptr. 642,178 Cal.App.2d 15
• Decision Date: 15 February 1960
• Docket Number: Cr. 3051
• Court: California Court of Appeals Court of Appeals
• Parties: Application of Elmer R. TINSLEY, for a Writ of Habeas Corpus.

Page 642

2 Cal.Rptr. 642

178 Cal.App.2d 15

Application of Elmer R. TINSLEY, for a Writ of Habeas Corpus.

Cr. 3051.

District Court of Appeal, Third District, California.

Feb. 15, 1960.

Elmer R. Tinsley, in pro. per., for petitioner.

Stanley Mosk, Atty. Gen., by Doris H. Maier and Lloyd Hinkelman, Deputy Attys. Gen., for respondents.

VAN DYKE, Presiding Justice.

Petitioner herein filed application for a writ of habeas corpus. He seeks to have a judgment declared void and the sentence imposed thereunder set aside. We issued an order to show cause and respondent made return. The following appears:

In 1954, petitioner was convicted of robbery in the first degree, robbery in the second degree, and kidnapping for the purpose of robbery. He was sentenced to the state prison for the terms prescribed by law. In 1955 judgment was entered upon petitioner's plea of guilty to a charge of violation of Section 182, Subdivision 1, of the Penal Code, in that he conspired to escape from a state prison in violation of Section 4530 of the same code. Petitioner seeks to have this judgment declared void because contrary to express provisions of Section 4530 it directed that his term of imprisonment thereunder should run concurrently with that which he was then serving under the 1954 judgment. Section 4530 provides:

'Every prisoner confined in a state prison who escapes or attempts to escape therefrom, is punishable by imprisonment in a state prison for a term of not less than one year; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison.'

The provisions of Section 4530 are mandatory and prevail over those of Section 669 of the Penal Code. In re McManus, 123 Cal.App.2d 395, 401, 266 P.2d 929. Consequently, the trial court was not empowered to order that his term of imprisonment for violation of Section 4530 should run concurrently with those sentences that he was currently serving. That part of the judgment so providing must be disregarded. In re Rye, 152 Cal.App.2d 594, 596, 313 P.2d 914. But that part of the judgment sentencing petitioner to 'the term prescribed by law' is valid. Ordinarily we would merely so declare and hold that petitioner's term of imprisonment for his violation of Section 4530 will 'commence from the time he would otherwise have been discharged from said prison.' In re Rye, supra. However, due to the facts hereinafter related, we have determined that the writ of habeas corpus should be granted and petitioner remanded to the custody of the Sheriff of the County of Marin to be brought before the Superior Court of that county for arraignment for judgment respecting his violation of Section 4530. In re Bartges, 44 Cal.2d 241, 248-249, 282 P.2d 47.

It is admitted that petitioner was induced to enter his plea of guilty to the charge of conspiring to violate Section 4530 by an understanding between the court, the district attorney, defense counsel and himself, that if he did so plead the court would direct that his term of...