In Re Pope

SCHOTTKY, J.

This is a motion by the Attorney General of the State of California to dismiss a petition for a writ of habeas corpus filed by Andrew E. Pope on the ground that the matter is moot.

Pope filed a petition for a writ of habeas corpus in this court in which he alleged that he was convicted in April 1955 of

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violation of section 476a of the Penal Code. The judgment was ordered to run ‘ ‘ concurrently with any sentence heretofore imposed. ’ ’ Prior to the time the state judgment was imposed Pope had been convicted in a federal court of juvenile delinquency and assisting in causing a mutiny in a federal prison. He had been given a conditional release by the federal authorities. He violated the terms of his parole, and at the time of the imposition of the California judgment a federal warrant was outstanding against Pope for his arrest and return to the custody of the federal authorities to serve the remainder of his sentence. Pope seeks a transfer to the federal authorities so that the state judgment will run concurrently with the federal one. Under the federal rules the computation of time on a federal sentence begins to run only from the date on which the prisoner is received at the federal penitentiary for service of his sentence.

(Zerbst

v.

McPike,

97 F.2d 253, 254.) It is the rule in this state that a prisoner confined to state prison under a judgment of conviction in a state court is entitled to be transferred to the custody of federal authorities to serve his sentence under a prior federal judgment of conviction so that the prisoner may gain the benefit of the provision of a state judgment subsequently entered which orders that the state sentence be served concurrently to any other sentence now outstanding where the federal judgment has been brought to the attention of the trial court.

(In re Stoliker,

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

Upon this statement of facts this court issued an order to show cause why a writ of habeas corpus should not issue. The basis of the motion to dismiss by the Attorney General of California is that the Federal Bureau of Prisons " have ’ ’ designated the California state institution for service of the federal sentence.