In Re Grey

11 Cal.3d 554 (1974) 522 P.2d 664 114 Cal. Rptr. 104 In re HARRINGTON BERNARD GREY on Habeas Corpus.

Docket No. Crim. 17156. Supreme Court of California. In Bank.

May 23, 1974. [555] COUNSEL

Frank M. Ennix for Petitioner.

Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier, Assistant Attorney General, Russell Iungerich and William R. Pounders, Deputy Attorneys General, for Respondent.

OPINION

BURKE, J.

This case concerns the application to a parolee of precommitment custody time credit required by section 2900.5 of the Penal Code under our holding in In re Kapperman, ante, page 542 [114 Cal. Rptr. 97, 522 P.2d 657].[1] Under the rationale of Kapperman, petitioner is entitled to credit for the time he served in county jail while appealing his conviction, but that credit is only to be applied against the statutory maximum and minimum of his offense. Consequently, despite petitioner's contention herein, the credit does not advance the parole termination date fixed by the Adult Authority so long as the credited time, plus the prison and parole time already served or to be served, does not exceed the maximum term. (See In re Kapperman, supra, ante, p. 547, fn. 5.)

[556] Petitioner was convicted in 1967 of one count of forgery (Pen. Code, § 470) and sentenced to a term of 6 months to 14 years commencing on April 28, 1967. In 1969 the Adult Authority fixed his term at six years, with parole granted for three of those years beginning April 28, 1970, and terminating on April 28, 1973. Shortly before that termination date, on March 16, 1973, petitioner was taken into custody on a charge of forgery. He was subsequently charged with violation of parole, a parole hold was placed upon him, and his term was refixed at the statutory maximum of 14 years. Although this 14-year maximum already has been reduced by reason of petitioner's precommitment custody time credit, he maintains that the credit should have been applied to advance, retroactively, his April 28, 1973, discharge date. Under petitioner's theory his parole must be deemed to have terminated before the March 1973 forgery charge was made and thus the subsequent parole hold and refixing of sentence were improper.[2]