In Re Collie

GIBSON, C. J.

Following his conviction of first degree murder, petitioner was sentenced to death on January 11, 1932. While he was awaiting execution at San Quentin prison, a jury found that he had become insane, and he was transferred to the Mendocino State Hospital. Some time later the hospital’s psychiatric staff reported that petitioner had regained his reason and recommended commutation of sentence to life imprisonment, stating that he would probably become insane again if he were returned to condemned row. In 1934 Governor Rolph commuted the sentence to life imprisonment “upon the condition and with the restriction” that petitioner be confined in San Quentin “for the remainder of his natural life, and that he shall never be eligible for release upon parole, nor shall his release upon parole ever be authorized or granted by any authority of the State of California.” By this application for writ of habeas corpus, petitioner, who is still confined in prison, seeks a determination of the validity of the condition thus imposed.

Since the commutation states that petitioner “shall never be eligible for parole,” it acts as an immediate restraint on him and prevents him from applying for parole, as may ordinarily be done after seven years’ confinement by a prisoner who is serving a life sentence. (See Pen. Code, § 3046.) The writ of habeas corpus, therefore, is a proper remedy to determine whether the condition which purports to deprive petitioner of the right to seek parole is valid. (Pen. Code, § 1473; see

In re Bramble,

31 Cal.2d 43, 53-54 [187 P.2d 411];

In re Seeley,

29 Cal.2d 294, 298-299, 303 [176 P.2d 24];

In re Stewart,

24 Cal.2d 344, 345-346 [149 P.2d 689].)

The governor’s power to commute sentences is derived from article VII, section 1, of the Constitution which provides that

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lie “shall have the power to grant reprieves, pardons, and commutations of sentence, after conviction, for all offenses except treason and cases of impeachment, upon such conditions, "and with such restrictions and limitations, as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons.”