FEINBERG, J. I dissent,as I believe that the petitioner’s waiver of extradition signed in New York was effective because Penal Code section 11177, subdivision (3)1 (a part of the Uniform Act for Out-of-State Probationer or Parolee Supervision (Uniform Compact) (Pen. Code, § 11175 et seq.)) provides an alternative method for the return of a fugitive from justice.
A fugitive is defined as one who, having committed a crime in one state, leaves it and is found in another. (People v. Superior Court (Lopez)* (Cal.App.)) Petitioner is a fugitive. Parole violation is an extraditable offense. (Forester v. California Adult Authority (8th Cir. 1975) 510 F.2d 58, 61.) The question therefore is whether petitioner, a fugitive who has executed an advance waiver of extradition in another state, has a right to claim that she may only be returned by compliance with the Uniform Extradition Act.
As the majority concedes, my conclusion is supported by Ex parte Johnson, supra, (Tex.Crim. 1980) 610 S.W.2d 757, and the authorities therein cited. In Johnson, as here, the petitioner was a fugitive who had executed a prior waiver of extradition in another state (Illinois) as a condition of his parole. The court held that although he had not been transferred to Texas for parole supervision under the Uniform Compact, Johnson’s agreement to waive extradition was sufficient without formal extradition proceedings. The Johnson court first cited Cook v. [733]Kern (5th Cir. 1964), 330 F.2d 1003 which in turn quoted from U.S. ex rel. Simms on Behalf of Gray v. Lohman (7th Cir. 1955) 228 F.2d 824, at page 826, that .. . [h]aving entered into such [parole] agreement, it is not discernible how or in what manner his constitutional rights are violated when it is sought, upon a violation, to obtain his return. Assuming, however, contrary to what we think that any constitutional right is involved, it is waived by the agreement which the parolee makes with the State.” 228 F.2d at 826.’” The Johnson court then noted that Texas could apprehend and remand through its own authorities an absconding parolee who has signed a pre-release waiver of extradition under either the authority of the Uniform Compact or the Uniform Extradition Act.
The Johnson court relied on the authorities that support the proposition that prior waivers of extradition as a condition of parole are enforceable and provide an alternative to extradition or waiver under the Uniform Extradition Act. (Pierson v. Grant (8th Cir. 1975) 527 F.2d 161; Forester v. California Adult Authority, supra, 510 F.2d 58, 61; Schwartz v. Woodahl (1971) 157 Mont. 479 [487 P.2d 300]; White v. Hall (1972) 15 Md.App. 446 [291 A.2d 694]; In re Williams, 472 S.W.2d 779 (Tex.Cr.App. 1971); State ex rel. Swyston v. Hedman (1970) 288 Minn. 530 [179 N.W.2d 282]; State v. Tahash (1962) 262 Minn. 562 [115 N.W.2d 676]; Madden v. Simmons (1957) 39 Ala. App. 24 [92 So.2d 922]; Pierce v. Smith (1948) 31 Wn.2d 52 [195 P.2d 112] cert. den. 335 U.S. 834 [93 L.Ed.387, 69 S.Ct. 24]; Ex parte Casemento (1946) 24 N.J.Misc. 345 [49 A.2d 437, 439-440].)
All of the above find authority for giving effect, to the prior waiver in the provision of the Uniform Compact by which the states waive extradition. (Pen. Code, § 11177, subd. (3), quoted above at fn. 1.)
In Forester v. California Adult Authority, supra, 510 F.2d 58, the court, at page 61, held that conditioning parole on an execution of an extradition waiver did not render the waiver involuntary without a specific showing of how the condition was coercive in the particular case. The court noted that parole is an act of grace and reasonable conditions may be imposed by the Board which has wide discretion to determine under what conditions an inmate is to be paroled, and continued at page 61:
“In Morrissey v. Brewer, 408 U.S. 471, 477, 91 S.Ct. 2593, 2598, 33 L.Ed.2d 484 (1972), the Supreme Court noted that ‘[t]he essence of pa[734]role is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.’ While that case addressed conditions of parole which dealt with a parolee’s life-style rather than conditions that might affect the procedure to be used in recalling him to prison should he violate his parole, a pardon conditioned upon an extradition waiver was explicitly upheld in In re Saucier, 122 Vt. 208, 167 A.2d 368 (1961).”
I do not agree with my colleagues that a different result is mandated by In re Patterson (1966) 64 Cal.2d 357 [49 Cal.Rptr. 801, 411 P.2d 897], and its substantially identical companion case, In re Satterfield (1966) 64 Cal.2d 419 [50 Cal.Rptr. 284, 412 P.2d 540], Patterson is distinguishable. Patterson was on parole on the Texas sentence, but he did not oppose extradition; on the contrary, he sought an order directing his return to Texas. Thus, Penal Code section 11177 did not come into play. Further, insofar as California, in Patterson, asked that Patterson be required to execute a waiver of extradition to California as a condition of being returned to Texas, Patterson was not on parole for his California conviction and sentence so that, again, Penal Code section 11177 was not applicable.
In fact, the court in Patterson, supra, expressly recognized that Penal Code section 111772 was not there applicable, and section 1555.1 not the exclusive method of waiver. Thus, I do not think Patterson is controlling here. Further, In re Schoengarth (1967) 66 Cal.2d 295, 303 [57 Cal.Rptr. 600, 425 P.2d 200], held that the formal waiver prescribed by the first paragraph of Penal Code section 1555.1 did not apply to the transfer of a prisoner who “voluntarily” chooses to accept, a parole on condition that he is released to the custody of another state for trial on outstanding charges against him. Schoengarth, supra, relied on the rule that a parolee is bound by the express terms of his conditional release. (In re Peterson (1937) 14 Cal.2d 82, 85 [92 P.2d 890].)
In the case of In re Tenner (1942) 20 Cal.2d 670 [128 P.2d 338], in upholding the constitutionality of the Uniform Compact, our Supreme Court explained at page 678: “The existence of an independent method of securing the return of out-of-state parolees does not conflict with nor render ineffectual the federal laws with relation to extradition. The [735]federal method of extradition is always present and may be invoked when necessary to secure the right to return of the fugitive to the demanding state. Also states not party to the interstate compact are free to invoke that procedure to secure the return of fugitive parolees. And if a state has elected to follow the federal procedure and claim the constitutional guarantee, the fugitive of course has the right to insist, on habeas corpus, that the procedure conform to the federal law. Similarly the parolee detained under the interstate compact has the right to complain, by means of habeas corpus, if that law is not complied with by the authorities. But no right exists on the part of the parolee, whose parole has been revoked, to claim that he may only be removed by the method of his choosing. And since the statute applies uniformly to all parolees from states party to the compact, the petitioner may not complain that the statute deprives him of the equal protection of the laws. [Citations.]” (Italics added.)
New York is a party to the Uniform Compact. (N.Y. Exec. Law, § 259-m.) Subdivision (3) of that statute is identical to subdivision (3) of Penal Code section 11177. That provision makes the extradition procedures inapplicable, as is reiterated by Penal Code section 11179 which provides that the Compact shall be construed as separate and distinct from the extradition statutes.
To hold, as the majority impliedly does, that petitioner who violated a condition of her parole by leaving New York and coming to California is afforded more protection against being returned to New York than a supervised parolee who is in this state lawfully pursuant to the Uniform Compact would seem to make no sense. I repeat — Patterson does not compel such a result.
I would conclude, therefore, that the petitioner’s waiver is valid under the Uniform Compact. I find no basis to conclude that a pre-release waiver of extradition executed as a condition of parole must conform to the formal extradition procedure which by its own terms is non-exclusive. (Pen. Code, § 1555.1.)3
[736]In the case of In re Albright (1982) 129 Cal.App.3d 504, 510-511 [181 Cal.Rptr. 84], we held (at p. 509) that Penal Code section 11177, subdivision (3), provided an alternative method for, an out-of-state parolee who was in this state pursuant to the Uniform Compact to be returned to the sending state. We also held (at pp. 510-512) that due process under that statute required that an arrestee be afforded the right to counsel, to be taken before a judge who would determine the issues of identity, jurisdiction of the demanding state, validity of the demand, and habeas corpus to challenge any irregularities, but that due process did not require examination of the circumstances behind a waiver of extradition.
As petitioner was afforded the procedures we deemed essential in Al-bright to protect due process rights, I would deny the petition for a writ of habeas corpus.
Respondent’s petition for a hearing by the Supreme Court was denied September 1, 1982. Mosk, J., was of the opinion that the petition should be granted.
Penal Code section 11177, subdivision (3) provides: “That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state. If at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense.” (Italics added.)
Reporter’s Note: By order of the Supreme Court dated April 8, 1982, the Court of Appeal was directed to vacate its opinion filed Aug. 24, 1981, to entertain a petition for rehearing. For subsequent opinion see 130 Cal.App.3d 776 [182 Cal.Rptr. 132].
Unlike the court in Patterson, I find no language in Penal Code section 11177, subsection (3), providing that persons released on parole may be required to execute a waiver of extradition. I read the section merely to state that the states party to the Uniform Compact expressly waive all legal requirements to obtain extradition.
Here, while New York Criminal Procedure Law, section 570.50, parallels Penal Code section 1555.1, no cases have dealt directly with the question here presented. In People v. Williams (1977) 89 Misc.2d 269 [391 N.Y.S.2d 518] the court did not dismiss the fugitive warrant and specifically set for argument the issue of the validity of a prior waiver of extradition executed by the defendant in North Carolina when he was still a juvenile.