In Re Philpott

Opinion

LILLIE, P. J.

In these consolidated cases, George Aubrey Philpott and Daniel Lee Kennedy each seeks immediate release by way of petition for writ of habeas corpus, asserting that his present incarceration in state prison pursuant to parole revocation exceeds the 12-month maximum confinement set forth in Penal Code section 3057, subdivision (a). On each petition we issued order to show cause. For the reasons hereinafter stated, we deny each petition and discharge the order to show cause.

I

In re Philpott, No. B008116

Following conviction of attempted burglary, Philpott was sentenced to 18 months in state prison. After serving approximately 10 months, he was released on parole on April 29, 1982. On July 8, 1982, petitioner tested positive for morphine; he was placed in custody and his parole was revoked

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for a period of two months. Petitioner again was arrested, on June 14, 1983, for forgery, possession of a deadly weapon and use of heroin. This time his parole was revoked for 12 months; he was released from confinement in state prison pursuant to that revocation on June 14, 1984. On August 2, 1984, he was arrested for an assault, and his parole was revoked for a period of 12 months. Philpott presently is in custody pursuant to this most recent parole revocation.

He asserts in his petition that he is being held in illegal custody inasmuch as Penal Code section 3057 provides for a maximum of 12 months incarceration for parole revocation, and he has already spent more than 12 months in custody as a result of revocation of parole. He therefore seeks an order directing the Board of Prison Terms to release him from confinement under the assertedly illegal confinement order of the Department of Corrections. Philpott’s petition for writ of habeas corpus on the same ground filed in the Los Angeles Superior Court was denied on October 22, 1984.

II

In re Kennedy, No. B008117

In 1980, Kennedy was sentenced to three years in state prison after conviction of petty theft with a prior, and issuing checks without sufficient funds. He was released on parole on May 14, 1982. In December 1982 he was charged with misdemeanor forgery; he entered a guilty plea thereto and was sentenced to 24 days in custody. His parole was revoked for a period of nine months. He was released from state prison on September 16, 1983. He failed to immediately report to his parole officer and his parole was revoked on October 20 for a period of two months. On August 19, 1984, Kennedy was arrested on a parolee-at-large warrant issued in July 1984 after he failed to report to his parole officer. This time his parole was revoked for nine months. He is presently in state prison.