In Re Soldavini

NOURSE, P. J.

The State appeals from an order granting petitioner a writ of habeas corpus discharging him from custody. In 1933 respondent was delivered to the warden at San Quentin Prison following a conviction for attempted robbery. In August, 1934, his term was fixed at twelve years, and in June, 1939, he was released on parole. In October, 1940, he was convicted of burglary in the second degree and sentenced to Folsom Prison, where he was received on November 22, 1940. On June 19, 1941, this conviction was reversed on the grounds of the failure of the trial court to instruct the jury on the presumption of innocence.

(People

v.

Soldavini,

45 Cal.App.2d 460 [114 P.2d 415].)

On January 21, 1941, the Board of Prison Terms and Paroles revoked the parole of respondent, and on May 30, 1941, the Board of Prison Directors, after due notice and hearing, cancelled “such time credits as he has heretofore earned, or may hereafter earn.”

On January 16, 1942, respondent was again convicted of burglary in the second degree upon a retrial of the former case. He was granted probation subject to the condition that he serve ten months in the county jail. At the completion of this sentence he was taken into custody by the state

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parole officer and commenced these proceedings for his release.

The petition is grounded on the assertion that the Board of Prison Directors acted unlawfully in cancelling petitioner’s time credits because they acted solely upon the charge of the prisoner’s conviction upon the burglary charge and that no other evidence was offered or received. Following the issuance of the writ herein the State Parole Officer made return containing excerpts from the minutes of the two boards relating to the revocation of parole and to the cancellation of the time credits. From these exhibits it appears that the procedure outlined in section 2923 of the Penal Code was strictly followed and the orders of these boards became final as of their date.

In attacking these orders the petitioner asked that his petition be treated as a traverse to the return, but he offered no evidence in support of his assertion and none to contradict the record found in the return, except the wholly inadmissible and irrelevant testimony of himself that he did not plead guilty when he appeared before the Board of Prison Directors.