In Re Clark

FRIEDMAN, J.

Petition for habeas corpus was filed in the superior court, seeking Carl E. Clark’s discharge from the custody of the Department of Corrections. The superior court

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granted the petition and the People appeal. (Pen. Code, § 1506.) Petitioner is presently on bail.

Clark had been committed to state prison in 1962 for forgery. The Adult Authority released him on parole in July 1964. Allegations of parole violation came to the Adult Authority’s attention and on September 17, 1964, the authority canceled

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Clark’s parole. On the same day he reported to his parole officer, who lodged him in the Los Angeles County jail. He remained in the jail for 21 days. His parole having been revoked, he was taken to Folsom State Prison on October 8,1964.

In September 1965, the Adult Authority fixed Clark’s term at three years and three months. If credited with the 21 days spent in the county jail, Clark would have a discharge date of January 2, 1966. If, as the Attorney General contends, the 21 days was “dead time,” his discharge date would be January 23, 1966. On January 19, 1966, the Adult Authority purported to rescind its action of September 29, 1965.

The sole question is whether Clark’s 21 days in the Los Angeles County jail is “dead time” under Penal Code section 3064. That statute provides: “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. ’ ’

The question is resolved in petitioner’s favor by

Aguilera

v.

California Dept. of Corrections,

247 Cal.App.2d 150, 153 [55 Cal.Rptr. 292] (hg. den. by S. Ct.). The

Aguilera

opinion states: