In Re Hicks

[672]

THOMPSON, J.

By means of

habeas corpus

the petitioner seeks to obtain his release from state prison on the theory that he has served the term originally fixed by the prison board as a penalty for the crime of burglary of the second degree of which he pleaded guilty. For violation of his parole the prison board subsequently rescinded its original order fixing the period of his imprisonment at seven years and resentenced him to a term of twelve years which has not yet expired. It is contended the prison board was without authority to increase the term of his imprisonment after having definitely fixed it at seven years, and that section 1168 of the Penal Code as amended in 1931, pursuant to which his term was increased, is

ex post facto

and void as applied to the circumstances of this ease.

February 10, 1931, the petitioner was sentenced to state prison for the indeterminate period of from one to fifteen years as prescribed by section 461 of the Penal Code. He had previously pleaded guilty to burglary of the second degree, which crime he committed November 2, 1930. He entered prison February 12, 1931, to begin serving his sentence. Pursuant to section 1168 of the Penal Code, the prison board, on March 26, 1932, fixed the term of his imprisonment at seven years. That was done seven months after the amendment to section 1168 became effective. The prisoner was thereafter granted parole. For violation of that parole, the prison board, at a regular hearing held on December 4, 1934, rescinded its previous order fixing his term at seven years and resentenced him to a term of twelve years. At the time of increasing his term of imprisonment from seven to twelve years, the board at a regular hearing held for that purpose adopted the following resolution:

“That the action of this board heretofore taken on the 26th day of March, 1932, fixing his term of imprisonment at seven years be, and hereby is rescinded, annulled and revoked, pursuant to the provisions of paragraph (1) of section 1168 of the Penal Code, and it is,

“FURTHER RESOLVED, that the term of imprisonment of the aforesaid prisoner is hereby refixed at twelve (12) years, pursuant to the aforesaid provisions of the Penal Code, and that he be allowed to earn the usual credits on the additional time given him by this Board. ’ ’