In Re Tomlin

REGAN, J.

Petitioner Maynard T. Tomlin, a prisoner at Folsom State Prison, by this petition for habeas corpus seeks to compel his return to the Commonwealth of Virginia, there to complete a partially served Virginia sentence and thus to serve his California sentence and the prior Virginia sentence concurrently.

Tomlin, subsequent to a felony conviction in that state, was released on parole by the Virginia authorities and came to California. His parole was revoked. On November 30, 1964, after having been convicted of a felony, he was sentenced to the California State Prison. No provision was made in the judgment for the manner in which the California sentence was to be served in relationship to prior uncompleted sentences. On December 18, 1964, the Virginia authorities notified California that it held a warrant for Tomlin’s arrest, requesting their warrant be considered a detainer. Virginia declared its intention to retake Tomlin whenever he was made available to that state. On December 20, 1965, Virginia advised California it had reviewed the ease and now sought to retake Tomlin at the completion of his California term of imprisonment.

Respondent concedes that Tomlin has the right to be made available to the Virginia authorities so that he may get the benefit of a concurrent sentence as required by the law of the State of California.

(In re Portwood,

236 Cal.App.2d 321 [45 Cal.Rptr. 862].) This is so even though the California judgment is silent on concurrency.

(In re Altstatt,

227 Cal.App.2d 305 [38 Cal.Rptr. 616].) The law of this state requires only that Tomlin be made available, it does not and cannot compel the Commonwealth of Virginia to take him.

(Matthews

v.

People,

136 Colo. 102 [314 P.2d 906, 909];

West

v.

Graham,

211 Ga. 662 [87 S.E.2d 849];

Ex parte Anderson,

135 Tex.Crim.Rep. 291 [120 S.W.2d 259];

Brown