The PEOPLE, Plaintiff and Respondent, v. Richard Dale GOOLEY, Defendant and Appellant.
In the published portion of this case we hold that the trial court erred in ordering defendant's sentence for his current offense to run consecutively to his period of incarceration for parole violation.
Defendant Richard Dale Gooley appeals from a judgment sentencing him to state prison after a jury found him guilty of possessing a controlled substance in a state prison in violation of Penal Code section 4573.6. Defendant contends that the trial court erred in ordering that his sentence be fully consecutive to a period of incarceration for a parole violation, that the trial court conducted inadequate voir dire during jury selection, and that his trial counsel was incompetent in failing to object to the inadequate voir dire or to request a curative jury instruction. We shall modify the judgment to correct the improper consecutive sentence and then affirm as modified.
On December 16, 1991, defendant was an inmate at Mule Creek State Prison. On that day defendant received a visit from Peggy Delaney, who was identified as his spouse. During the visit defendant told a correctional officer that he needed to use the bathroom. A patdown search was conducted during which the correctional officer discovered a green balloon in defendant's right front pants pocket. The balloon was found to contain .35 grams of methamphetamine.1 Defendant did not testify.
Defendant committed his current offense while serving a prison term for a prior offense. However, well before his trial and conviction for this offense, he completed his term of imprisonment and was released on parole. At the time of his conviction and sentencing for the current offense, defendant's parole had been revoked for unrelated reasons and he had been returned to prison to serve a period of confinement pursuant to the parole revocation. (Pen.Code, § 3057.) In sentencing defendant the trial court imposed the three-year middle term for his current offense. The court ordered that the sentence be a full-term consecutive sentence to defendant's prior prison term. The court also ordered: “This sentence to run fully consecutive to the state prison term defendant is now serving which is a parole violation emanating from the time defendant was in Mule Creek.” Defendant contends that the trial court erred in ordering that his sentence be fully consecutive to the time remaining on his parole violation. We agree.
The offense for which defendant was serving a prison term when he committed his current offense and his current offense were both subject to the Determinate Sentencing Law.2 Under the Determinate Sentencing Law there is a distinction between the sentences imposed for each of the defendant's offenses and the total unstayed prison term which must be served. In sentencing a defendant under the Determinate Sentencing Law, a court must impose the appropriate sentence for each offense by selecting a term from the applicable sentence range. (Pen.Code, § 1170, subd. (b).) The court must impose any applicable sentence enhancements, and must determine whether the sentences for multiple offenses are to be concurrent or consecutive. (Pen.Code, §§ 669, 1170.1.) After imposing sentence on each offense and making appropriate determinations with respect to enhancements and concurrent or consecutive sentencing, the court calculates the defendant's total unstayed prison term. (Pen.Code, § 1170.1; Cal.Rules of Court, rule 447.) Any portion of any sentence which is imposed for an offense or enhancement that exceeds aggregate term limitations is stayed pending service of the unstayed portion of the sentence. (Cal.Rules of Court, rule 447.) Where the defendant is subject to a previously imposed prison sentence, and the court in the current case orders consecutive sentencing, the court calculates the total unstayed prison term by combining all of the charges as though they were charges in the current case. (Cal.Rules of Court, rule 452(1) & (2).) However, in doing so the court in the current case may not change discretionary decisions of the prior court. (Cal.Rules of Court, rule 452(3).) 3
The general rule with respect to calculating the total unstayed determinate term of imprisonment is provided in Penal Code section 1170.1, subdivision (a). Under that provision the principal term is the greatest term of imprisonment imposed for any of the defendant's offenses. The effect of a consecutive sentence is generally to add one-third of the middle base term prescribed for the offense to the defendant's total unstayed aggregate prison term.4
The general one-third-the-middle-term rule is subject to an exception for crimes committed by prisoners. Penal Code section 1170.1, subdivision (c), provides: “In the case of any person convicted of one or more felonies committed while the person is confined in a state prison, or is subject to reimprisonment for escape from custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions which the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a), except that the total of subordinate terms may exceed five years. This subdivision shall be applicable in cases of convictions of more than one offense in different proceedings, and convictions of more than one offense in the same or different proceedings.” Pursuant to this provision, a person who is convicted and sentenced to a consecutive term for a felony offense committed while already serving a prison term is not entitled to the benefit of the one-third-the-middle-term rule and receives a full-term addition to the unexpired portion of his previous term. (People v. McCart (1982) 32 Cal.3d 338, 345, 185 Cal.Rptr. 284, 649 P.2d 926; In re Kindred (1981) 117 Cal.App.3d 165, 167–168, 172 Cal.Rptr. 468.) 5
A sentencing court's duty to determine whether a sentence for one offense should be consecutive to a sentence for another offense is established in Penal Code section 669. This section provides, in relevant part: “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.” In the event a prior unexpired term is brought to the attention of the court but the court fails to specify whether the newly imposed term is to be concurrent or consecutive, then it is concurrent. (Pen.Code, § 669.) 6
The concept of concurrency is not subject to doubt. It means, essentially, happening at the same time or “simultaneously.” (Webster's New Internat. Dict. (2d ed. 1934) p. 555; see also Black's Law Dict. (6th ed. 1990) p. 291.) When two or more prison sentences are concurrent, they run together during any period of overlap. (In re Roberts (1953) 40 Cal.2d 745, 749, 255 P.2d 782.) There is, of course, no requirement that the sentences must start and end together, but during any period of overlap the defendant serves concurrent sentences simultaneously and receives credit against each sentence during the period of the overlap. (Ibid.)
The concept of consecutiveness is likewise well established. Consecutive means “Successive; succeeding one another in regular order; to follow in uninterrupted succession.” (Black's Law Dict. (6th ed. 1990) p. 304.) A consecutive sentence is one “which commences at the termination of some other term of imprisonment to which the defendant has been sentenced.” (In re Kindred, supra, 117 Cal.App.3d at p. 168, 172 Cal.Rptr. 468; People v. McCracken, supra, 68 Cal.App.2d at p. 576, 157 P.2d 21; People v. Hirschbein, supra, 16 Cal.App.2d at p. 460, 60 P.2d 532.)
From the definitions of concurrent and consecutive sentencing, it can be seen that those concepts can have no meaning except with respect to a separate, incomplete, and unexpired term of imprisonment to which the defendant is subject. “The term of imprisonment fixed by the judgment in a criminal action commences to run only upon the actual delivery of the defendant into the custody of the Director of Corrections at the place designated by the Director of Corrections as a place for the reception of persons convicted of felonies.” (Pen.Code, § 2900, subd. (a).) A newly imposed term of imprisonment cannot be served concurrently, that is simultaneously, with a term which has already been completed. Likewise, a newly imposed sentence cannot be served consecutively, that is in uninterrupted succession, to a term which has previously been completed and from which the defendant has already been released. When a defendant is sentenced upon a new conviction after he has been released from custody upon completion of a prison term for a prior offense, the new sentence can be neither concurrent nor consecutive, and is instead a new commitment to which the concurrent or consecutive sentence provisions of Penal Code sections 669 and 1170.1, subdivision (a), have no application.7 Accordingly, the portion of any judgment that specifies that the prison term for a defendant's current offense be served consecutive to his prior prison term would be erroneous, although in practical effect it would also be superfluous.
As we have noted, defendant committed his current offense while serving a prison term for a prior offense from which he was released on parole before his present conviction. At the time of conviction and sentencing for the current offense, defendant's parole had been revoked and he had been returned to prison to serve a period of confinement pursuant to the parole revocation. (Pen.Code, § 3057.) The question, then, is whether defendant's confinement pursuant to a parole revocation is a “term of imprisonment” under Penal Code section 669, such that the sentencing court must determine whether the terms shall run concurrently or consecutively.
With the enactment of the Determinate Sentencing Law the concept of parole was substantively changed.8 Under prior law, parole meant a “release of a prisoner prior to expiration of his term of imprisonment conditioned upon his continuing good behavior during the remainder of the term.” (In re Peterson (1939) 14 Cal.2d 82, 85, 92 P.2d 890.) Under that concept, a parolee enjoyed a conditional liberty but was still under the legal custody of the Department of Corrections and was, in contemplation of law, still a prisoner. (In re Marzec (1945) 25 Cal.2d 794, 797, 154 P.2d 873; In re Taylor (1932) 216 Cal. 113, 115, 13 P.2d 906.) Such a person was, in effect, serving his term in a prison without bars. (People v. Denne (1956) 141 Cal.App.2d 499, 508, 297 P.2d 451.) The suspension or revocation of parole required the parolee to return to prison and made him a fugitive until his return to custody. (Aguilera v. California Dept. of Corrections (1966) 247 Cal.App.2d 150, 151–152, 55 Cal.Rptr. 292.) But whether outside of prison while lawfully on parole, or in prison after revocation of parole, the prisoner was considered to be continuously serving his prison term. (Ibid.)
In enacting the Determinate Sentencing Law, the Legislature declared that the purpose of imprisonment for crime is punishment, and that this purpose can best be served by sentencing which is proportionate to culpability and uniform with similar offenders. (Pen.Code, § 1170, subd. (a)(1).) Under the Determinate Sentencing Law the sentencing court imposes an aggregate unstayed prison term which, with allowance for good time/work time credits, must be served by the defendant before release from prison. (Pen.Code, §§ 1170, subd. (b), 1170.1.) There is no provision in the Determinate Sentencing Law by which a prisoner may be permitted “to go upon parole outside the prison walls and enclosures” during his aggregate unstayed term of imprisonment. (Cf. Pen.Code, § 3040.) However, “as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000.” (Pen.Code, § 1170, subd. (c).)
In Penal Code section 3000, subdivision (a)(1), the Legislature declared, “that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship. It is in the interest of public safety for the state to provide for the supervision of and surveillance of parolees, including the judicious use of revocation actions, ․ to assist parolees in the transition between imprisonment and discharge.” Accordingly, “[a]t the expiration of a term of imprisonment of one year and one day, or a term or imprisonment imposed pursuant to Section 1170 or at the expiration of a term reduced pursuant to Section 2931, if applicable, the inmate shall be released on parole for a period not exceeding three years, unless the parole authority for good cause waives parole and discharges the inmate from custody of the department.” (Pen.Code, § 3000, subd. (b)(1).) During the period of parole, the parole authority has full power to suspend or revoke parole and order the defendant returned to prison. (Pen.Code, § 3060.) In the absence of a new conviction and commitment under other provisions of law, the maximum period of confinement pursuant to a revocation of parole is 12 months, unless the defendant commits additional misconduct after revocation of probation. (Pen.Code, § 3057.)
Discretion over paroles, and the revocation and reinstatement thereof, is vested in the “parole authority,” which is the Board of Prison Terms. (Pen.Code, § 3000, subd. (b)(6).) 9 There must be cause for suspending or revoking a parole. (Pen.Code, § 3063.) Parole revocation proceedings may be conducted by a panel of one person (Pen.Code, § 3063.6), are not subject to the administrative hearing procedures of the Government Code (Pen.Code, § 3066), and the revocation of parole is not a judicial act (see In re Tucker (1971) 5 Cal.3d 171, 177, 95 Cal.Rptr. 761, 486 P.2d 657; Pope v. Superior Court (1970) 9 Cal.App.3d 644, 647, 88 Cal.Rptr. 488).
Under the Determinate Sentencing Law concept, parole is not a part of the defendant's term of imprisonment but rather is a period of supervision and surveillance imposed separately from the term of imprisonment. (In re Wilson (1981) 30 Cal.3d 438, 442, 179 Cal.Rptr. 207, 637 P.2d 674; People v. Reed (1993) 17 Cal.App.4th 302, 307, 21 Cal.Rptr.2d 425.) A defendant's term of imprisonment is completed when he is released on parole. (People v. Reed, supra, 17 Cal.App.4th at p. 307, 21 Cal.Rptr.2d 425.) And when a defendant's parole is revoked he is not returned to prison to serve the balance of his original term, but is reimprisoned to serve a maximum of 12 months for violating his parole. (People v. Mathews (1980) 102 Cal.App.3d 704, 713, 162 Cal.Rptr. 615.) 10
In People v. Mathews, supra, 102 Cal.App.3d at p. 713, 162 Cal.Rptr. 615, the defendant committed a crime while on parole for a prior offense. The court of appeal held that it was appropriate to enhance the new prison term for a prior completed prison term (Pen.Code, § 667.5), but that the new prison term could not be consecutive to the defendant's imprisonment for his parole violation. Of the authorities cited by the parties or disclosed in our research, the decision in Mathews is the closest to being on point.11 However, that decision was not concerned with the identical issue presented here. In that case the defendant completed his determinate prison term and was released on parole before committing the offense for which he was currently being sentenced, and his parole was revoked because of his new offense. Under those circumstances the Attorney General conceded that if the defendant's new term was properly enhanced for a prior prison term, then the imposition of the new term consecutive to the parole violation was improper. In contrast, in this case defendant committed his current offense while still serving his prison term for a prior offense, his current offense was not subject to enhancement for the prior term, he was released on parole after commission but before conviction and sentencing for the current offense, and his parole was revoked for reasons extraneous to the current offense. The parties have cited, and we have discovered, no authority squarely on point.
Upon consideration we agree with defendant that his current offense may not be ordered to be consecutive to his incarceration for his parole violation. We arrive at this conclusion through two separate lines of reasoning.
First, Penal Code section 669, which we have set forth in relevant part above, requires, and empowers, a trial court to make a concurrent/consecutive sentencing determination when there are two or more convictions embraced within one or more judgments. In that instance, the court must determine whether the terms of imprisonment are to be concurrent or consecutive. Likewise, Penal Code section 1170.1, subdivision (a), which provides for calculation of the aggregate unstayed term of imprisonment, refers to one or more judgments and terms of imprisonment imposed by one or more courts. Revocation of parole is not a judicial act and an order revoking parole is not a judgment. (See In re Tucker, supra, 5 Cal.3d at pp. 177, 95 Cal.Rptr. 761, 486 P.2d 657; People v. Penner (1980) 111 Cal.App.3d 168, 172, 168 Cal.Rptr. 431.) “As to those procedures, the court has no authority, only the board.” (Community Release Bd. v. Superior Court (1979) 91 Cal.App.3d 814, 817, 154 Cal.Rptr. 383.) Accordingly, under the Determinate Sentence Law, the concurrent/consecutive sentence provisions of the Penal Code do not by their terms apply to incarceration upon revocation of parole.
Second, revocation of parole is a matter committed exclusively to the parole authority. (People v. Penner, supra, 111 Cal.App.3d at p. 172, 168 Cal.Rptr. 431; Community Release Bd. v. Superior Court, supra, 91 Cal.App.3d at pp. 816–817, 154 Cal.Rptr. 383.) The parole authority has “full power to suspend or revoke any parole․” (Pen.Code, § 3060.) The parole authority's power over revocations of parole would be compromised if trial courts had authority to order that new prison terms be consecutive to incarceration for parole violations.
The effect of a consecutive sentence is to compel the defendant to complete an earlier period of incarceration before beginning to serve the new sentence. In case of multiple judgments imposing prison terms, the subsequent sentencing judge determines whether the current sentence will be consecutive to any previously imposed term, but may not interfere with the discretionary decisions of the previous judge or judges. (Cal.Rules of Court, rule 452(3).) Previously imposed prison terms are incorporated into one aggregate unstayed prison sentence and embodied into the last judgment. (Pen.Code, § 1170.1; Cal.Rules of Court, rule 452.) A judgment ordering that a term of imprisonment be consecutive to incarceration for a parole violation would effectively incorporate the parole violation into the judgment, although parole violations are not the proper subject of a judgment and are outside judicial jurisdiction. Such an order would interfere with the parole authority's discretion over the parole violation, since an administrative agency such as the parole authority cannot interfere with a judgment.
In In re Gonzales (1974) 43 Cal.App.3d 616, 118 Cal.Rptr. 69, this court had occasion to consider a trial court's interference with the power of the parole authority, at that time known as the Adult Authority. In that case the sentencing court granted probation on condition that the parole authority revoke parole on an earlier offense. We said: “The Adult Authority, not the court, had statutory authority to determine whether to continue petitioner's parole or to revoke it. (Pen.Code, § 3060.) If the court believed that petitioner belonged in prison rather than in jail or on conditional liberty, the court had power to deny probation and impose a prison sentence. In that eventuality the Adult Authority could exercise its own judgment regarding the existing parole. According to the terms of the probation order, an Adult Authority action reinstating petitioner on parole would result in judicial revocation of probation and sentence of imprisonment at the hands of the court; once petitioner returned to prison, there would be little logic in an Adult Authority action continuing him on parole from the earlier commitment. Through the mechanism of the probation order, the trial court imposed an advance veto on the Adult Authority's decision to continue defendant at liberty and cornered the Adult Authority into a position where it had no practical alternative except to revoke parole. The probation order was an illegal interference with the Adult Authority's conduct of its functions.” (43 Cal.App.3d at pp. 620–621, 118 Cal.Rptr. 69.) 12
As the authorities we have cited establish, the imposition and calculation of terms of imprisonment under the Determinate Sentencing Law are judicial functions that are committed to the jurisdiction of sentencing courts and which are embodied in judgments, while parole and the revocation thereof are administrative functions committed to the parole authority and are not judicial acts and are not embodied in judgments. Neither authority can interfere with the decisions of the other within their respective jurisdictions. A judgment ordering that a newly imposed prison sentence be consecutive to a parole violation would interfere with the parole authority's power over parole violations since it would require that the defendant complete a period of incarceration for his parole violation before his new prison term could begin and would thus bind the hands of the parole authority in the matter.13 Like the order of probation in In re Gonzales, supra, 43 Cal.App.3d at p. 621, 118 Cal.Rptr. 69, the judgment here was in excess of jurisdiction to the extent it ordered defendant's prison sentence to be fully consecutive with his incarceration on violation of parole.
Our conclusion that the court could not properly order that defendant's prison term be consecutive to his incarceration for violation of parole applies to the unserved portion of his parole violation. It was appropriate for the court to make a determination with respect to the period of time defendant had actually served pursuant to parole violation at the time of judgment and sentencing. However, the procedural vehicle for consideration of that time was through determination of the presentence credits to which defendant was entitled rather than through a concurrent/consecutive sentence determination. It is established that where, as here, the defendant's parole violation was not based upon the same conduct that gave rise to his new conviction and sentence, then he is not entitled to presentence credit for time served pursuant to parole violation. (People v. Adrian, supra, 191 Cal.App.3d at p. 885, 236 Cal.Rptr. 685; People v. Boney, supra, 136 Cal.App.3d at p. 747, 186 Cal.Rptr. 511.) The trial court did not purport to award defendant presentence credit for time served pursuant to his parole violation, and neither party challenges the award of credit made by the court. Accordingly, nothing further was necessary in this respect.
In summary, we have concluded that since defendant completed his prior prison term and was released before conviction and sentencing on this current offense, it was not necessary or appropriate for the trial court to make a concurrent/consecutive sentencing determination with respect to the prison term for the prior offense. We have also concluded that to the extent that the court ordered this term to be consecutive to defendant's incarceration for his parole violation, the judgment was in excess of jurisdiction. We will modify the judgment to delete the orders that this sentence be served consecutive to the prior prison term and to the incarceration for the parole violation, and shall affirm as modified.
The judgment is modified by striking the orders that defendant's prison sentence be fully consecutive to his prior term of imprisonment and to his incarceration for a parole violation. As modified the judgment is affirmed. The trial court is directed to prepare and forward an amended abstract of judgment to the Department of Corrections to reflect this modification.
1. In a separate trial, Peggy Delaney was found guilty of possessing methamphetamine in a state prison in violation of Penal Code section 4573.6, and of bringing methamphetamine into a state prison in violation of Penal Code section 4573. She was granted probation. Peggy Delaney is not involved in this appeal.Separate trials were the result of multiple failures to appear. Peggy Delaney secured bail but failed to appear. After her apprehension, defendant, who had been released on parole and secured bail on this offense, also failed to appear. He was apprehended by the bail bondsman and was readmitted to bail. He failed to appear at trial and Peggy Delaney was tried alone. As a result, defendant's trial was conducted after the trial of Peggy Delaney and more than two years after the offense.
2. Determinate sentencing was established in the Uniform Determinate Sentencing Act of 1976 and became operative on July 1, 1977. (Stats.1976, ch. 1139, § 350, p. 5175.) It is now referred to as the Determinate Sentencing Law. (See In re Stanworth (1982) 33 Cal.3d 176, 177–178, 187 Cal.Rptr. 783, 654 P.2d 1311.)
3. The prior court's discretionary decisions include such matters as the lower, middle or upper term for the prior offenses, the imposition or striking of enhancements, and whether the prior offenses are to be consecutive with each other. (Cal.Rules of Court, rule 452(3).)
4. In addition to the general rule we are discussing, the Determinate Sentencing Law provides other limitations upon the length of the unstayed aggregate term which may be imposed, exceptions to those limitations, and directions concerning when sentence enhancements may or may not be included in the calculation.
5. If a prisoner is convicted of multiple additional offenses, the exception to the one-third-the-middle-term rule applies only to the principal term for the new offenses and any additional consecutive sentences are calculated in accordance with the one-third-the-middle-term rule. (People v. McCart, supra, 32 Cal.3d at p. 345, 185 Cal.Rptr. 284, 649 P.2d 926.)
6. From the enactment of the Penal Code in 1872 until 1927, section 669 provided that where a defendant was convicted of multiple offenses before sentencing, the terms for the second and subsequent offenses “must commence at the termination” of the term or terms to which the defendant was sentenced for his other offenses. (See In re Radovich (1943) 61 Cal.App.2d 177, 179, 142 P.2d 325.) This was construed to permit consecutive sentencing only with respect to any offenses for which the defendant had not yet been sentenced, and to require concurrent service of sentence with respect to any previously imposed term. (Ibid.) In 1927, section 669 was amended to require that all sentences be consecutive except that in “exceptional cases” sentencing courts had discretion to impose concurrent sentencing. (Stats.1927, ch. 626, § 1, p. 1056.) In 1931 the “exceptional cases” language was eliminated and sentencing courts were given full discretion to order concurrent sentences. (Stats.1931, ch. 481, § 4, p. 1052.) In 1941, section 669 was amended to provide that in the event the court fails to specify whether the sentences should be concurrent or consecutive, then they will be served concurrently. (Stats.1941, ch. 742, § 1, p. 2262.) The actual use of the word “consecutively” did not appear in section 669 until 1978. (Stats.1978, ch. 579, § 28, p.1987.) Before the 1978 amendment of section 669, that section provided that the court should determine whether a sentence would be served concurrently or “whether the imprisonment to which he is or has been sentenced upon the second or other subsequent conviction shall commence at the termination of the first term of imprisonment to which he has been sentenced, or at the termination of the second or subsequent term of imprisonment to which he has been sentenced, as the case may be․” (Stats.1943, ch. 219, § 1, p. 1122; See In re Radovich, supra, 61 Cal.App.2d at pp. 181–182, 142 P.2d 325.) It was held that the use of the word “consecutively” in a judgment was sufficient to connote that the sentence would commence at the termination of an earlier term. (People v. McCracken (1945) 68 Cal.App.2d 574, 576, 157 P.2d 21; People v. Hirschbein (1936) 16 Cal.App.2d 458, 460, 60 P.2d 532.)
7. Of course, if the new sentence itself involves multiple offenses, then the concurrent/consecutive sentencing dichotomy comes into play with respect to the multiple offenses which comprise the new prison commitment.
8. Although most criminal offenses in this state are treated under the Determinate Sentencing Law, there remain some offenses to which indeterminate sentencing is applicable. (Pen.Code, § 1168, subd. (b).) There are statutory differences in the parole concept depending upon the determinate or indeterminate nature of an inmate's prison sentence. (See Pen.Code, §§ 3000, 3040 et seq.) We are here concerned with parole as applicable to determinate sentences and do not consider whether the same result would obtain with respect to a prisoner on parole from an indeterminate prison term.
9. The Governor also has the power to revoke parole and the Governor's written order revoking parole is entitled to the same force and effect as an order of the parole authority. (Pen.Code, § 3062.)
10. For one purpose, by express legislative directive, a period of imprisonment pursuant to a parole revocation is treated as though it were part of the defendant's term of imprisonment. Specifically, for purposes of enhancing a prison sentence for prior prison terms, a prior separate prison term includes any reimprisonment on revocation of parole which is not accompanied by a new prison commitment. (Pen.Code, § 667.5, subd. (g).) In other words, when a defendant served a term of imprisonment, was released on parole, and was returned to prison for violation of parole, he has served only one prior separate prison term for purposes of sentence enhancement. (People v. Mathews, supra, 102 Cal.App.3d at pp. 711–712, 162 Cal.Rptr. 615.) On the other hand, a defendant who reoffends after release on parole may receive a sentence enhancement for a prior completed prison term despite subsequent reimprisonment on revocation of parole. (Id. at p. 712, 162 Cal.Rptr. 615; People v. Espinoza (1979) 99 Cal.App.3d 59, 72–73, 159 Cal.Rptr. 894.) Thus, the fact that the defendant has not completed a period of incarceration for violation of parole does not mean that he has not completed a prior prison term for purposes of sentence enhancement. (Ibid.)
11. In People v. Boney (1982) 136 Cal.App.3d 744, at pp. 747 and 748, 186 Cal.Rptr. 511, this court distinguished Mathews, and held that a state determinate prison sentence could be ordered to be consecutive to a period of federal imprisonment following parole revocation, since under the federal concept of parole a violator is returned to serve the remainder of his original sentence. In People v. Adrian (1987) 191 Cal.App.3d 868, at p. 881, 236 Cal.Rptr. 685, the court noted the Mathews decision in considering the defendant's claim for presentence conduct credits.
12. We also noted that probation is a judicial power that cannot be delegated to a nonjudicial agency, and concluded that “[t]he order in question was an unlawful abdication of judicial discretion, making continued probation contingent upon the action of the Adult Authority, an agency independent of the court.” (Id. at p. 620, 118 Cal.Rptr. 69.)
13. In this respect we note that the Board of Prison Terms, by regulation, has established procedures governing action of the parole authority upon revocation of parole. (Cal.Code Regs., tit. 15, § 2635 et seq.) Action with respect to a parolee who is returned to prison as a revoked parolee with a new prison commitment is contained in title 15, California Code of Regulations, section 2649. The specific provisions of the rule are beyond the scope of our inquiry here. It is sufficient to note that the parole authority, pursuant to its statutory authorization, has established rules governing its actions in the circumstances presented here. (Pen.Code, §§ 3052, 5076.2.)
FOOTNOTE. See footnote *, ante.
SPARKS, Acting Presiding Justice.
SIMS and DAVIS, JJ., concur.