In Re Bowers

Opinion

KAUFMAN, J.

The San Bernardino Superior Court granted petitioner a writ of habeas corpus. The People appeal. (Pen. Code, § 1506.)

On January 2, 1970, petitioner was convicted of robbery and sentenced to state prison. On December 8, 1972, petitioner was released on parole. Eleven days later, on December 19, 1972, petitioner was arrested by the Los Angeles police and charged with the violation of Penal Code section 12021 (possession.of a concealed weapon by a convicted felon). On January 9, 1973, the day set for preliminary hearing, the pending charges against petitioner were dismissed. On February 6, 1973, the charges were refiled. On March 30, 1973, the charges were again dismissed, this time on a motion under Penal Code section 995.

Although petitioner was subject to a parole hold and was visited in Los Angeles County jail by a parole agent, no prerevocation hearing was

[361]

granted petitioner. On April 10, 1973, petitioner was returned to the California Institution for Men at Chino for a parole revocation hearing. On April 25, 1973, petitioner applied to the San Bernardino Superior Court for a writ of habeas corpus asserting that he had not been afforded the prerevocation hearing mandated by

Morrissey

v.

Brewer,

408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593]. On May 17, 1973, a parole revocation hearing was had at Chino at which the Adult Authority found that petitioner “violated Condition 3 of the Conditions of Parole by having a weapon in his possession.” Accordingly, petitioner’s parole was revoked.

The trial court, finding that petitioner had not been afforded a prerevocation hearing, granted the petition for habeas corpus. The order of the trial court reads as follows:

“It is Ordered that:

“(1) The Adult Authority strike from petitioner’s records the charged violation of Condition 3 of his parole, and its finding of güilty thereon;