Yutze, In re, Cr. 11705

• Decision Date: 03 October 1968
• Docket Number: Cr. 11705
• Citation: 71 Cal.Rptr. 673,69 Cal.2d 389,445 P.2d 289
• Court: California Supreme Court
• Parties: , 445 P.2d 289 In re Daniel John YUTZE on Habeas Corpus.

Page 673

71 Cal.Rptr. 673

69 Cal.2d 389, 445 P.2d 289

In re Daniel John YUTZE on Habeas Corpus.

Cr. 11705.

Supreme Court of California In Bank.

Oct. 3, 1968.

Daniel John Yutze, in pro. per., and Robert N. Beechinor, San Francisco, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Michael J. Phelan, John F. Henning, Jr., and John T. Murphy, Deputy Attys. Gen., for respondent.

BURKE, Justice.

The question presented is whether Daniel John Yutze is entitled to credit on his 1956 California prison sentence for the time he served in federal institutions under a 1963 federal sentence.

The Department of Corrections (hereafter called the Department) did not give Yutze such credit and without it his discharge date was February 1, 1968. Less than one month before that date, namely on January 11, 1968, we issued an order to show cause and ordered him released from San Quentin on his own recognizance.

In 1956 Yutze pleaded guilty to unlawful possession of narcotics (maximum term 10 years; Health & Saf.Code, § 11500) and was sentenced to prison. On November 7, 1956, he began serving the sentence. Subsequently, on repeated occasions, he was released on parole, his parole was suspended and his return to prison ordered, and his term was fixed at the maximum. ¹

One of the occasions he was paroled was in 1962. Thereafter, on July 11, 1963, the Adult Authority suspended his parole, ordered his return to prison, and refixed his term at the maximum. He was arrested on August 14, 1963, ² and remained in 'local confinement' from that date until January 7, 1964. ³ He apparently was held in such confinement under the Adult Authority order and also on a federal charge of importing narcotics without payment of a tax (26 U.S.C. § 4724(a); see Pen.Code, § 4005). According to the Department, the period he remained at large after July 11 (1 month and 3 days) was computed as 'dead time,' but the time he was in 'local confinement' (4 months and 23 days) was credited to his sentence.

On December 23, 1963, Yutze pleaded guilty in a United States District Court to the federal charge and was committed to the custody of the United States Attorney General for two years. The judgment recommended that Yutze be sent to a public health service hospital for treatment for narcotic addiction and further recommended that 'if state parole is revoked, the Director of the Bureau of Prisons, if possible, assign (Yutze) to state institution in order that sentences may run concurrently.'

On January 7, 1964, Yutze was transferred to a Public Health Service Rehabilitation Center in Texas. He underwent treatment there until June 1964, when he was taken to a federal prison in California. A detainer was lodged by California with federal authorities.

In July 1964 the Adult Authority cancelled Yutze's parole. In October 1964, in response to a letter from the United States Department of Justice, the California Director of Corrections wrote, '* * * we will accept custody of * * * Yutze for concurrent service of his State and Federal sentences upon his delivery to our custody by your officer * * *.'

On January 14, 1965, Yutze was released to the custody of the Department, and in March 1965 his parole was revoked.

The Department properly did not give Yutze credit on his California sentence for the time he served in federal institutions (1 year and 7 days). A prisoner on parole remains under the custody of the Department (Pen.Code, § 3056) and is serving his sentence although not confined in prison (Ex parte Casey, 160 Cal. 357, 358, 116 P. 1104; Aguilera v. California Dept. of Corrections, 247 Cal.App.2d 150, 151, 55 Cal.Rptr. 292). However, 'From and after the suspension or revocation of the parole of any prisoner and Until his return to custody he shall be deemed an escape and fugitive from justice and no part of the time during which he is an escape and fugitive from justice shall be part of his term.' (Italics added; Pen.Code, § 3064.)

Assuming for the moment that Yutze's 'local confinement' from August 14, 1963, until January 7, 1964, has no effect upon whether he should receive credit on his California sentence for the period he was in federal institutions, it seems clear that under the quoted section he was not entitled to such credit but must be deemed a 'fugitive from justice' during that period. As we shall see, 'custody,' as used in that section, does not include confinement in federal institutions under a federal judgment of conviction.

The return points out that a federal court's recommendation that a federal sentence run concurrently with a prison state sentence constitutes surplusage. (Hash v. Henderson, 8 Cir., 385 F.2d 475, 477; Hamilton v. Salter, 4 Cir., 361 F.2d 579, 581; Bateman v. United States, 8 Cir., 277 F.2d 65, 69; Montos v. United States, 7 Cir., 261 F.2d 39, 40; see also Larios v. Madigan, 9 Cir., 299 F.2d 98, 100--101.) In Hash, supra, for example, where it was contended that since the federal court recommended that Hash's three-year federal sentence run concurrently with a prior state sentence, he completed his federal sentence by serving three years in a state prison, the court rejected the contention, stating in part (385 F.2d at p. 477), 'The Attorney General of the United States is given the right to designate where a sentence shall be served. 18 U.S.C.A. § 4082(a). Thus, the recommendation of the District Court that Hash's original sentence run concurrently with the state sentence then being served in a state prison was surplusage and could have been disregarded by the Attorney General. * * * The fact that the Attorney General chose initially to accept the court's recommendation did not commit him to allow the prisoner, whatsoever the circumstances, to serve the full sentence concurrently. * * *' It thus appears that a federal sentence is consecutive with a prior state sentence if the United States Attorney General does not designate the state institution for service of the federal sentence.

To hold that confinement in federal institutions pursuant to a federal judgment of conviction is not to be credited toward a prior uncompleted California sentence does not leave such a parolee who commits a federal crime without protection against being required to serve consecutive federal and state sentences where the facts do not warrant the sentences being consecutive. A federal court in its judgment or a letter may recommend that a federal sentence run concurrently with a state sentence, and, although such a recommendation is not binding on the Attorney General, it is frequently followed by him (see Hamilton v. Salter, supra, 4 Cir., 361 F.2d 579, 581; see 41 F.R.D. 467, 505), and if he designates the state prison for the service of the federal sentence the prisoner receives the benefit of concurrent sentences.

With respect to the previous assumption that Yutze's 'local confinement' from August 14, 1963, until January 7, 1964, has no effect upon whether he should receive credit on his California sentence for the period he served in federal institutions, no claim is made contrary to the assumption, and it is apparent that the matter assumed is correct. Manifestly it would be unreasonable to have the fortuitous circumstance that a parolee is first placed in such confinement before being confined in a federal institution determinative as to whether he is entitled to credit on his state sentence for the period he is...