In Re Altstatt

DRAPER, P. J.

Petitioner, serving a term in San Quentin prison for robbery, seeks by this habeas corpus proceeding to compel his transfer to custody of federal authorities in order that his terms may run concurrently for the some 487 days remaining to be served on his federal sentence.

In 1958, he was convicted in the United States District Court, San Diego, of smuggling marijuana (21 U.S.C. § 176a). He was sentenced to five years in federal prison, was paroled in 1962, and soon was arrested for robbery. He was found guilty in superior court, probation was denied, and he was sentenced to state prison for the term prescribed by law, i.e., not less than five years. The federal conviction was charged and admitted, the issuance of a federal “hold” or “detainer” is described in the probation report, and the sentencing superior judge eoncededly knew of both. His judgment, however, does not provide that the two sentences shall be served either concurrently or consecutively.

If the state court sentence expressly provided that it should run concurrently with the federal sentence, petitioner would be entitled to transfer to federal custody as the sole means of effecting such concurrency

(In re Stoliker,

49 Cal.2d 75 [315 P.2d 12];

In re McClure,

192 Cal.App.2d 38 [13

[307]

Cal.Rptr. 298]; see also

People

v.

Massey,

196 Cal.App.2d 230, 236-239 [16 Cal.Rptr. 402]).

In the absence of express direction in the later judgment, the term of imprisonment on a second conviction “whether in the same . . . court or in different . . . courts” shall run concurrently with the term to be served on the earlier conviction (Pen. Code, § 669). Our question is whether the statute applies when the first sentence is by a federal court, or only when it is by a California court.