PAYTON v. << (1945)

Upon his conviction of a felony petitioner was sentenced to the state prison on June 28, 1939. He was received there on January 27, 1940, and his term of imprisonment was fixed at five years by the Board of Prison Terms and Paroles. In the absence of any untoward occurrence his term would have expired January 27, 1945. The question before us is whether, by reason of the facts hereinafter related, said term was interrupted and the terminal date deferred until after February 9, 1945, the date of the last purported suspension of petitioner's parole which is here under review. Petitioner was discharged from custody by the superior court on a writ of habeas corpus and the attorney general has appealed from that order.

On November 12, 1941, petitioner was released on parole. He was arrested on a charge of assault on May 29, 1943, and on a report of his arrest said board made an order on June 14, 1943, that his parole be ‘cancelled, suspended and/or revoked.’ He was convicted on the charge of assault on June 24, 1943, and on July 20, 1943, he was returned to the state prison. Charges of violation of his parole were filed upon which he was given a hearing before the Board of Prison Terms and Paroles in August, 1943. He pleaded guilty to some of the charges and was found guilty on others, whereupon the board made an order finding him guilty and adopted a resolution that its ‘action had on June 14, 1943, is hereby affirmed.’ On March 2, 1944, he was again released on parole. The Adult Authority suspended the latter parole on December 8, 1944, but its action was held invalid by this court in an opinion filed on February 6, 1945, for the reason that the cause of suspension was not stated in the order. In re Payton, 67 Cal.App.2d 835, 155 P.2d 837. On February 9, 1945, the Adult Authority made a second order purporting to suspend petitioner's parole, stating its reasons therefor. A warrant was issued for petitioner's arrest and he was placed in custody.

Section 3064 of the Penal Code provides as follows: ‘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.’ Hence if the order of June 14, 1943, purporting to suspend or revoke petitioner's parole was valid he was a fugitive from justice from that date until July 20, 1943, the date of his return to the state prison, a period of 35 days. If we so hold, said period was not a part of the term of imprisonment and said term would not have expired until after February 9, 1945, the date of the last order suspending petitioner's parole. On the other hand, if the order of June 14, 1943, was not valid, petitioner was not a fugitive from justice and his term expired on January 27, 1945. In such case he was out of the jurisdiction of the Adult Authority when the order of February 9, 1945, was made.

‘No parole shall be suspended or revoked without cause, which cause must be stated in the order suspending or revoking the parole.’ Penal Code, sec. 3063; In re Knaesche, 22 Cal.App.2d 667, 669, 72 P.2d 216; In re Payton, supra. The order of June 14, 1943, contained recitals and an order in substantially the same words as appear in the order of December 8, 1944, quoted in full and declared void by this court in In re Payton, supra. The same objection applies to each order—the cause of suspending or revoking the parole was not stated.

It requires no study of semantics to reach the conclusion that section 3063 of the Penal Code was not complied with by the recital in the order of suspension. The phrase in the order, ‘due cause being shown by the State Parole Officer,’ is not a statement of the cause of suspension, and the reference to the parole officer's report is ineffective for any purpose. The board made no finding as to the correctness of the meager statement in the parole officer's report that petitioner had been arrested. (Whether or not he was guilty of the charge had not then been determined.) The omission was not, as claimed by appellant, a mere clerical error that could have been corrected by a subsequent order or that was corrected by the order made in August, 1943. There were two separate orders: The first is described above and was made without findings of fact or a statement of cause; the second was made after a formal hearing upon written charges accusing petitioner of several acts in violation of his parole, upon which the board made findings of fact and purported to confirm the void order of June 14.

That the error complained of was not clerical but that the order was in the form customarily employed by the board is indicated not only by the fact that the order of June, 1943, was in the same language as that of December, 1944 (In re Payton, supra), but by appellant's lament that a ‘literal construction’ of section 3063 of the Penal Code will render void all previous orders suspending or revoking paroles in which the cause was not specifically stated, and that many persons whose paroles have been revoked will be entitled to discharge. Neither an argument of expediency nor the result that may befall others weighs against the rights of a prisoner who is legally entitled to his release from custody.

If petitioner's parole had been legally cancelled, suspended ‘and/or’ revoked, whichever was done and whatever that expression may mean, he was a fugitive from justice while at large, and the period intermediate the date of suspension and his return to prison cannot be credited as a part of his term of imprisonment. In re Sommers, 135 Cal.App. 541, 543, 27 P.2d 649; In re Falconi, 22 Cal.App.2d 604, 606, 71 P.2d 948; In re Forbes, 108 Cal.App. 683, 686, 292 P. 142; In re Daniels, 110 Cal.App. 638, 639, 294 P. 735. But during the time when he was lawfully at liberty on parole he was, in legal contemplation, a prisoner ‘under the control of the state board of prison directors.’ Such time must be credited on the term of his sentence. In re Stanton, 169 Cal. 607, 610, 147 P. 264; Ex parte Casey, 160 Cal. 357, 358, 116 P. 1104; In re Falconi, supra, 22 Cal.App.2d at page 605, 71 P.2d 948.

It follows that the order of June 14, 1943, was void, and that petitioner was legally entitled to his liberty during the period of 35 days intervening between that date and July 20, 1943, when he was returned to the state prison. Giving him credit to which he is entitled for said period, his term of imprisonment expired on January 27, 1945, and the order of February 9, 1945, was a futile attempt to extend a sentence already expired.

The order discharging petitioner from custody is affirmed.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.