In Re Pearce

Opinion

ELKINGTON, J.

Petitioner Pearce was convicted as a person who having previously been convicted of a felony, was found to have been in possession of a concealable firearm. (Pen. Code, § 12021.) He was sentenced to state prison for that offense, May 8, 1964. He escaped from prison on August 23, 1965 (in violation of Pen. Code, § 4530, subd. (b)) and was apprehended February 19, 1966. He was thereafter convicted of that crime also; the sentence was ordered to run consecutively with his sentence on the Penal Code section 12021 conviction. Each of Pearce’s sentences was fixed at three years, and he was paroled December 11, 1968. Thereafter, March 14, 1969, his parole was suspended for some here unchallenged cause by California’s Adult Authority.

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On July 8, 1969, Pearce was apprehended and placed in jail in Alabama solely because of his suspended parole. He successfully resisted extradition to California in Alabama’s courts for 15 months, after which he was returned to California’s state prison on October 8, 1970.

The Adult Authority allowed Pearce no credit on his terms of imprisonment for the period March 1, 1969 to October 1, 1970, which latter date was the first day on which Alabama permitted California to return him to prison.

On Pearce’s petition to the superior court for a writ of habeas corpus, it was ordered, among other things, that he be credited on his California prison terms with the time that he had spent in custody in Alabama while resisting extradition. The People have appealed from that portion of the order.

Established are the facts: (1) that Pearce was held in Alabama’s custody solely on account of the Adult Authority’s order suspending his parole, and (2) that during his Alabama confinement while resisting extradition, California had no power to return him to prison for service of the remainder of his term.

Critical to the appeal is Penal Code section 3064, which states the following: “From and after the suspension or revocation of the parole of any prisoner and until his return to custody he shall be deemed an escape and fugitive from justice and no part of the time during which he is an escape and fugitive from justice shall be part of his term.”