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Court of Appeal, Third District, California.

IN RE: George W. BENNETT, on Habeas Corpus.

Cr. 4878.

Decided: October 15, 1968

Lionel K. Hvolboll, Court Appointed Counsel, Sacramento, for petitioner. Thomas C. Lynch, Atty. Gen., by Edsel Haws and John Fourt, Deputy Attys. Gen., Sacramento, for respondent.


1. May a parole violator's time while committed to Atascadero State Hospital in connection with later offenses be added to his maximum term for the offense upon which he received parole?

2. The effect of the October 31, 1967, order releasing defendant.

3. Effect of insanity on parole violation.


In December 1958 petitioner pleaded guilty to felony grand theft from the person and was sentenced to state prison for the indeterminate term of 6 months to 10 years. His term commenced upon delivery to the prison on January 8, 1959. (Pen. Code, § 2900.) In March 1960 the Adult Authority tentatively fixed his term at 3 years with 18 months on parole. His discharge date was tentatively fixed at January 8, 1962. In July 1961 his parole was revoked and his term refixed at the maximum of 10 years, making the discharge date January 9, 1969.1 In July 1962 his term was tentatively fixed at 6 1/2 years with parole for 2 1/2 years, the new discharge date being July 9, 1965. He was released on parole January 9, 1963.

In March of 1963, in violation of the conditions of his parole, he changed his place of residence without permission of his parole officer. From March until May 3 (the date of his arrest upon kidnapping and perversion charges), he further violated the conditions of parole by failing to submit reports to his parole officer. On May 21, by information, he was charged with felony kidnapping (Pen. Code, § 207) and felony perversion (Pen. Code, § 288a). On June 26 the superior court found petitioner presently insane on the basis of medical reports of court-appointed physicians, suspended the criminal proceedings, and committed him to Atascadero State Hospital until he should become sane.

On August 8, 1963, petitioner's parole officer filed with the Adult Authority a report charging petitioner with three violations, all taking place prior to his commitment to Atascadero: (1) changing place of residence without permission; (2) failing to submit monthly reports; and (3) commission of the offenses of kidnapping and perversion. This report contained an opinion of one of the examining doctors that on May 3 petitioner was insane but was probably not a sexual psychopath under section 5504 of the Welfare and Institutions Code. The report recommended that petitioner's parole be cancelled and that he be returned to prison. On August 16, 1963 (petitioner then having been at Atascadero since June 26), the Adult Authority ordered petitioner's parole cancelled, refixed his term at the maximum of 10 years, and ordered his detention and return to prison. (Pen. Code, § 3056.) Petitioner remained at Atascadero. Later, he was certified to the superior court as sane. On September 13, 1965, he entered a plea to the two offenses of not guilty by reason of insanity. On January 5, 1966, the court found petitioner guilty of both kidnapping and perversion offenses. However, upon the basis of medical reports, the court found that at the time of the commission of the offenses petitioner was insane and, therefore, it found petitioner not guilty of the offenses because of insanity. It further found petitioner to be presently insane and ordered his commitment to Atascadero pursuant to Penal Code, section 1026.

While petitioner was still at Atascadero and on January 28, 1966, the Adult Authority reaffirmed its order of August 16, 1963, which cancelled petitioner's parole. On October 31, 1967, the superior court, having been informed by the hospital that petitioner was legally sane but still considered extremely dangerous, granted petitioner's motion for release from the state hospital. On November 8, 1967, petitioner was taken into custody by parole officers and held at the Los Angeles county jail pending transfer to prison. He was returned to prison on December 7, 1967.

On November 20, 1967, a technical report of violation of parole by defendant had been filed with the Adult Authority based upon his failure to furnish to his parole officer his address after discharge from Atascadero. The report also stated: ‘Although Subject may be considered legally sane at this time, it is apparent that he is still a very emotionally disturbed person and extremely dangerous. It is therefore recommended that he be returned to prison at this time, for the protection of society.’ On December 1, 1967, the Adult Authority again reaffirmed its prior action taken August 16, 1963.

The new date of discharge was fixed to be March 30, 1973. This date was arrived at by adding to the maximum 10–year sentence (1) the parole violator-at-large day of July 28, 1961, and (2) the 4 year, 3 months and 21-day period between the cancellation of parole on August 16, 1963, and his delivery to prison on December 7, 1967, less the 29 days petitioner spent in the Los Angeles county jail between November 8, 1967, and his delivery to prison on December 7, 1967.

On January 26, 1968, petitioner entered a plea of guilty to the November 20, 1967, parole violation charges. The Authority, after a hearing, ordered his parole revoked.

1. The Effect of Petitioner's Commitment to Atascadero.

Petitioner contends that the Adult Authority exceeded its jurisdiction in August 1968 in cancelling petitioner's parole and in refixing his prison term, as he contends that he was insane at the time of violating his parole and because of that fact he could not be found guilty of violation of parole, and that in any event he is entitled to credit for the so-called ‘good time’ he spent in Atascadero.

By statute, the Adult Authority has been delegated authority to cancel, suspend, or revoke parole without notice and without hearing. (Pen. Code, § 3060; In re McLain (1960) 55 Cal.2d 78, 85, 9 Cal.Rptr. 824, 357 P.2d 1080.) Suspension and revocation of parole must be for cause stated in the Adult Authority order of suspension or revocation. (Pen. Code, § 3063; In re McLain, supra, pp. 85–87, 9 Cal.Rptr. 824, 357 P.2d 1080.

‘The Adult Authority, by statute, has exclusive jurisdiction to fix the length of time a prisoner must serve within the limits of an indeterminate sentence. [Citation.] One who is legally convicted has no vested right to the determination of his sentence at less than maximum [citations], and hence the authority ‘may redetermine such sentences as conditions require’ [citation].' (In re Schoengarth (1967) 66 Cal.2d 295, 302, 57 Cal.Rptr. 600, 604, 425 P.2d 200, 204.)

Section 3064 of the Penal Code provides. ‘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.’

While it has been held that a prisoner serving time in another state after suspension of his parole in this state is not entitled to have credited on his sentence here the time served by him in the penitentiary of the other state (In re Campbell (1939) 36 Cal.App.2d 221, 224, 97 P.2d 482), and that the Adult Authority cannot in computing time served disregard or add to the prison term time spent in actual custody in jail under its own orders suspending, cancelling or revoking parole (In re Fluery (1967) 67 Cal.2d 600, 603, 63 Cal.Rptr. 298, 432 P.2d 986; see also Aguilera v. California Dept. of Corrections (1966) 247 Cal.App.2d 150, 153, 55 Cal.Rptr. 292), the precise question involved in the case at bench has never been decided.

There is no provision for the giving of credit on a prison sentence for time spent in commitment to a state hospital under sections 1367–1372 of the Penal Code. (These sections deal with suspending criminal proceedings to determine the sanity of the person charged and for commitment to a state hospital until such person becomes sane enough to stand trial.) Nor is there such provision in regard to a commitment to a state hospital under section 1026. (This section applies to commitment of a defendant found not guilty by reason of insanity at the time of the commission of an offense.)

However, where a prisoner has been delivered by the Director of Corrections to the Director of Mental Hygiene pursuant to Penal Code, sections 2684–2685, the Legislature has specifically provided for the time spent in the state hospital to be credited on the prisoner's sentence. Thus, delivery of the prisoner to the Director of Mental Hygiene takes place when the Director of Corrections is of the opinion that ‘the rehabilitation of any mentally ill, mentally deficient, or insane person confined in a state prison may be expedited by treatment at any one of the state hospitals * * *.’ (Pen.Code, § 2684.) The Attorney General contends that because of the absence of a provision for credit for time spent in a state hospital under commitments under Penal Code, sections 1367–1372, or 1026, the Legislature intended that the time spent under such commitments by a parole violator should not be credited against his sentence even though the violator remained in a state hospital.

When the Authority orders the return of a parole violator who is then in the county jail, the county officers are ‘agents of the authority’ (Aguilera v. California Dept. of Corrections, supra, 247 Cal.App.2d at p. 153, 55 Cal.Rptr. 292.) But where a parole violator is committed to a state hospital by a court, it has never been deternined whether the hospital officers are such agents, although where the commitment is by the Director of Corrections, the hospital officers become agents of the Authority.

At the time of the 1963 order revoking petitioner's parole, the Authority could have ordered him returned to prison and taken into its physical custody from the state hospital. The Authority could then have placed him in a medical facility of the Authority or, under the provisions of sections 2684–2685, placed him in Atascadero. In either such event, the defendant would have been entitled to have his time spent in the hospital credited on his sentence.

In In re Fluery, supra, 67 Cal.2d at page 603, 63 Cal.Rptr. at page 300, 432 P.2d at page 988, it was held that ‘in computing time served the Adult Authority cannot disregard or add to the prison term time spent in actual custody in jail under its own orders suspending, cancelling, or revoking parole.’ The court then held (p. 603, 63 Cal.Rptr. p. 300, 432 P.2d p. 988) that ‘the Adult Authority must credit petitioner for the time served in jail under the 1966 misdemeanor sentence that was silent as to, and therefore concurrent with, his prison sentence.’

In Aguilera v. California Department of Corrections, supra, 247 Cal.App.2d 150, 55 Cal.Rptr. 292, the petitioner was held in jail under both an Authority hold for violation of parole and for misdemeanor charges. The court held (p. 154, 55 Cal.Rptr. p. 295): ‘His return to prison was delayed solely because the authority consented to his detention in jail.’ In effect, it determined that because the Authority could have returned him to prison after revoking his parole but permitted him to remain in jail to serve his misdemeanor sentence, petitioner was entitled to credit on his prison sentence for the time he spent in the jail. So in the instant case, the Authority, after revoking petitioner's parole, permitted him to remain at Atascadero. As in Aguilera, the defendant was not penalized for the failure of the Authority to remove him from jail, so petitioner should not be penalized for the failure of the Authority to remove him from Atascadero.

Not to allow petitioner credit on his sentence for the time he spent at Atascadero after his parole was revoked would result in a most anomalous and unfair situation. Had he not been in the state hospital when his parole was revoked and had the Adult Authority made no effort to return him to prison if he were available for return, he would have been entitled to credit on his sentence for the time the Authority permitted him to remain at large. Again, had the Authority taken him from Atascadero and placed him either in their own medical facility or returned him to Atascadero, he would have been entitled to credit for the time spent in either place. It would seem only reasonable to hold that the Authority's failure to take him into custody after revoking his parole constituted a waiver of the right to his custody and an acquiescence in his remaining out of their custody.

The Attorney General points out that at any time during his confinement at Atascadero and after the revocation of his parole, petitioner could have applied to the court to compel the Authority to take him into custody (see In re Forbes (1930) 108 Cal.App. 683, 687, 292 P. 142) and that thereafter he would be getting credit on his sentence, and contends that his failure to apply for such relief constitutes a waiver of any right to have his hospital time credited on his sentence. It would seem manifestly unfair to penalize an insane man for failing to take such steps. The burden should be on the state rather than on him to give him the relief to which he is entitled.

Had petitioner been found guilty of the subsequent offenses instead of not guilty by reason of insanity, the court could have made his sentence run concurrently with that of the prior offense, in which event petitioner's confinement by the state, wherever it might be, would be credited on his prior sentence. However, by reason of his having been found not guilty by reason of insanity, his period of confinement by the state, albeit not in a prison, would be added to his sentence if the Attorney General's contention is valid. This does not seem fair.

2. October 31, 1967, Release Order.

On that date, pursuant to a petition by petitioner claiming that he was now sane, petitioner was brought into the Los Angeles County superior court in the original kidnapping and perversion proceeding. The court's minute order states ‘Court finds defendant presently sane. Defendant released.’ The court stated that there were no ‘holds' on defendant. The Attorney General claims that the court's statement and the release were inadvertences. Petitioner contends that the court's statement and order constituted a complete release from the sentence upon which he had been paroled.

A person found not guilty by reason of insanity as petitioner was, remains in the state hospital until the court finds that his sanity has been restored. He is then entitled to release, both from the state hospital and from any custody arising from the charge as to which he was found not guilty by reason of insanity. Such release, however, has no effect on any other proceeding and, of course, could not constitute a release from any prison term he may be serving because of some other offense. If the court knew that there was an order of the Authority requiring his return to prison because of violation of parole (the record we have is silent upon this subject), the proper order would have been to release petitioner from the state hospital and to order him delivered to the Adult Authority. However, the failure to make such an order even if the court knew of the Authority's hold, could not release defendant from his prison sentence. All that was before the court was the issue of whether defendant was now sane. If so, he was entitled to immediate release from Atascadero and from any further proceedings following from the kidnapping and perversion charges. There was and could be no issue then before the court concerning his sentence on the grand theft or parole violation charges.

3. Effect of Petitioner's Insanity on His Parole Violation.

Apparently it is petitioner's contention that because petitioner was found to have been insane in May 1963, both at the time of the commission of the kidnapping and perversion and at the time of arraignment, he must have been insane in March 1963 when he violated his parole by changing residence without permission of his parole officer and that because of such insanity he could not be found guilty of parole violation. This contention is baseless.

Section 3056, Penal Code, provides: ‘Prisoners on parole shall remain under the legal custody of the department and shall be subject at any time to be taken back within the inclosure of the prison.’ (People v. Prochnau (1967) 251 Cal.App.2d 22, 27, 59 Cal.Rptr. 265, 269.) Sentence to prison of a convicted felon is not for the purpose of punishment but for the purpose of rehabilitation. When the Adult Authority, in its discretion, determines that the process of rehabilitation can be best carried on by permitting the prisoner to live under parole in the community, the parolee is still in legal custody of the Department of Corrections. If he violates the terms of his parole, whether he is sane or insane, no good reason appears why the Authority may not return him to prison for further proceedings in his rehabilitation. If he is insane, good reason requires that he be taken within the prison walls and a determination made as to whether his rehabilitation can best be obtained by the medical facilities of the Department of Corrections or by those of the state hospitals. It would be absurd to leave an insane parolee loose in the community.

There are many types of insanity. It is unnecessary to determine whether the finding by the court that petitioner was legally insane in May 1963 proved that the condition existed in March and April 1963 when petitioner violated his parole. Whether it did or whether petitioner then suffered from any other type of insanity is immaterial; the Adult Authority, having his custody, had the discretionary right to return him to prison.

The Adult Authority is hereby ordered to credit petitioner's term with the time spent by him at Atascadero as hereinbefore set forth. As, even under such credit, petitioner's sentence does not expire until January 9, 1969, the writ is denied.


1.  He lost one day's time by reason of being a parole violator at large for one day.

BRAY, Associate Justice Assigned.

FRIEDMAN, Acting P.J., and REGAN, J., concur.