FALCONI v. <<

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District Court of Appeal, Third District, California.

Ex parte FALCONI.

Cr. 1578.

Decided: September 23, 1937

Frank Falconi, in pro. per. U. S. Webb, Atty. Gen., and Wilmer W. Morse, Deputy Atty. Gen., for respondent.

Upon habeas corpus the petitioner seeks to be discharged from custody on the theory that his term of imprisonment has been fully served. Upon conviction of the crime of robbery the petitioner was committed June 25, 1917, to state prison at San Quentin, and later transferred to Folsom, for a term of twenty years. September 28, 1926, he was released on parole, subject to certain specified terms and conditions, among which was the requirement that he report periodically. For failure to comply with the conditions fixed by the prison board, his parole was revoked January 14, 1928. The petitioner failed to present himself for imprisonment at the state prison to complete his sentence after the termination of his parole, but continued to remain at large until September 14, 1930, when he was apprehended and again imprisoned. The prisoner remained at large two years and eight months after his parole was revoked before he was returned to state prison.

It is contended the petitioner is entitled to be discharged from custody because more than twenty years have elapsed since his commitment June 25, 1917, and that the prison board was without legal authority to suspend his parole or revoke his credits for violation of parole conditions occurring outside of the state prison for the reason that such conditions were not a part of the “rules and regulations of the prison.”

The petitioner has not fully served the term for which he was committed to state prison, and is therefore not entitled to be discharged from custody. In computing the term of imprisonment which has been served, the petitioner is entitled to credit for the time between September 28, 1926, and January 14, 1928, during which he was lawfully at liberty on parole. In re Forbes, 108 Cal.App. 683, 292 P. 142. After his parole was revoked on January 14, 1928, it was his duty to immediately present himself to the prison authorities at Folsom to complete his sentence of imprisonment in that institution. He is not entitled to credit upon the term of his sentence for that period of time from January 14, 1928, to September 14, 1930, during which he unlawfully remained away from Folsom state prison after the revocation of his parole. During the last–mentioned period of time the petitioner is deemed to have been a fugitive from justice. In in Re Sommers, 135 Cal.App. 541, 27 P.(2d) 649, it is said in that regard:

“After the petitioner's parole was revoked October 29, 1927, it became his duty to present himself to the prison authorities at Folsom to complete his sentence of imprisonment in that institution. He had then served but three years of his term. He thereafter willfully absented himself from that prison, and thereby became a fugitive from justice. One may not claim the benefit of the running of a sentence of imprisonment while he wilfully remains outside the prison without the sanction of the prison authorities and while he is a fugitive from justice. In re Forbes, 108 Cal.App. 683, 292 P. 142.”

The condition imposed by the prison board upon the parole of the petitioner requiring him to report periodically to the parole officer was a valid exercise of authority. It was a part of the rules and regulations of the prison, a breach of which authorized the prison board to revoke his parole. In re Taylor, 216 Cal. 113, 13 P.(2d) 906; Ex parte Stanton, 169 Cal. 607, 147 P. 264.

The writ is denied.

Mr. Justice THOMPSON delivered the opinion of the court.

We concur: PULLEN, P. J.; PLUMMER, J.