Tomlin, In re

• Decision Date: 22 April 1966
• Docket Number: Cr. 4039
• Citation: 50 Cal.Rptr. 805,241 Cal.App.2d 668
• Court: California Court of Appeals Court of Appeals
• Parties: In re Maynard T. TOMLIN on Habeas Corpus. California

Page 805

50 Cal.Rptr. 805

241 Cal.App.2d 668

In re Maynard T. TOMLIN on Habeas Corpus.

Cr. 4039.

District Court of Appeal, Third District,

California.

April 22, 1966.

Hearing Denied June 17, 1966.

Maynard T. Tomlin, in pro. per.

Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., Edsell W. Haws and Nelson Kempsky, Deputy Attys. Gen., for respondent.

REGAN, Justice.

Petitioner Maynard T. Tomlin, a prisoner at Folsom State Prison, by this petition for habeas corpus seeks to compel his return to the Commonwealth of Virginia, there to complete a partially served Virginia sentence and thus to serve his California sentence and the prior Virginia sentence concurrently.

Tomlin, subsequent to a felony conviction in that state, was released on parole by the Virginia authorities and came to California. His parole was revoked. On November 30, 1964, after having been convicted of a felony, he was sentenced to the California State Prison. No provision was made in the judgment for the manner in which the California sentence was to be served in relationship to prior incompleted sentences. On December 18, 1964, the Virginia authorities notified California that it held a warrant for Tomlin's arrest, requesting their warrant be considered a detainer. Virginia declared its intention to retake Tomlin whenever he was made available to that state. On December 20, 1965, Virginia advised California it had reviewed the case and now sought to retake Tomlin at the completion of his California term of imprisonment.

Respondent concedes that Tomlin has the right to be made available to the Virginia authorities, so that he may get the benefit of a concurrent sentence as required by the law of the State of California. (In re Portwood, 236 Cal.App.2d 321, 45 Cal.Rptr. 862.) This is so even though the California judgment is silent on concurrency. (In re Altstatt, 227 Cal.App.2d 305, 38 Cal.Rptr. 616.) The law of this state requires only that Tomlin be made available, it does not and cannot compel the Commonwealth of Virginia to take him. (Matthews v. People, 136 Colo. 103, 314 P.2d 906, 909; West v. Graham, 211 Ga. 662, 87 S.E.2d 849; Ex parte Anderson, 135 Tex.Cr.R. 291, 120 S.W.2d 259; Brown v. Grimes, 214 Ga. 388, 104 S.E.2d 907.) Nor may this state banish a convicted criminal from its borders. (In re Scarborough, 76 Cal.App.2d 648, 649--650, 173 P.2d 825.)

Respondent contends: (1) For Tomlin to be made available to the Virginia authorities this court must first issue its order therefore to the Director of Corrections. (2) That in all similar cases the availability for transfer must be effectuated pursuant to an order of a California court having jurisdiction. (3) That section 2900 of the Penal Code Does not give the Director of Corrections authority to make the prisoner available for transfer by administrative order alone.

Section 2900 of the Penal Code was amended in 1963 ¹ primarily to implement the agreement on detainers. (See Pen.Code, § 1389 et seq.) These sections provide a procedure whereby a prisoner of a sister state before completion of his sentence may be transferred to California for trial on a California charge. The reference in Penal Code section 2900 on the agreement on detainers is couched in the following language: '* * * pursuant to the agreement on detainers Or other provision of law * * *.' (Emphasis added.) Respondent contends the phrase 'or other provision of law' makes reference only to the statutory procedure for the transfer of prisoners from federal jurisdiction. (Pen.Code, § 1381.5.) We do not agree with this interpretation of the intent of the language. It is more reasonable to assume the legislature in its use of the phrase intended the broad rather than the limited meaning. In enacting the statute (Pen.Code, § 669), enabling the serving of concurrent sentences, it is unlikely that it would severely limit the availability of the statute to those for whose benefit the right is unequivocal and unconditional. Section 2900 of the Penal Code was intended to facilitate and implement concurrency.

We are of the opinion that Tomlin at the time of his California conviction and sentence was a prisoner 'of another jurisdiction' who 'before completion of actual confinement' in a prison of another jurisdiction was sentenced by a California court.

We hold that petitioner, who entered California as a parolee from another state and whose confinement therein has not been completed, is within the class...