Aguilera v. California Dept. of Corrections

[151]

DRAPER, P. J.

This appeal presents questions of the extent to which a parole violator’s time in county jail may be added to his maximum prison term. While difficult, the issue is hardly pressing in this case. Aguilera entered prison December 20, 1958, under concurrent sentences for a term of 1-25 years. Thus the Adult Authority now can hold him at least until late 1983. Only at that distant date can the 55 days here in issue affect either Aguilera or the authority. But the state chose to raise the issue now, and we must determine the appeal.

On August 1, 1962, after Aguilera had spent some 17 months on parole, his parole was cancelled and his return to prison ordered by the Adult Authority (Pen. Code, §§ 3056, 3060). He was arrested in Santa Clara County August 8 and was held in jail there under the authority’s order and on charges of misdemeanor traffic violations. He was convicted of the traffic violations and sentenced to county jail for terms totaling 72 days, all to run concurrently with his prison sentence. He was not returned to prison until 19 days after expiration of those terms. In 1963, he was again paroled and his parole was again cancelled. This time he was held 7 days in jail before being returned to prison.

He sought mandate, asserting that his total of 127 days in county jail be deemed served upon his prison sentence. The superior court agreed and issued peremptory writ. The state concedes that the 72 days served in jail under the misdemeanor convictions cannot be added to his prison term, since those sentences were to run concurrently with it. The concession is required

(In re Patton,

225 Cal.App.2d 83 [36 Cal.Rptr. 864]). It appeals, however, from that portion of the judgment which refuses to add to the prison term the remaining time, some 55 days, served in county jail (a) awaiting trial on the misdemeanor charges, (b) awaiting return to prison after completion of the misdemeanor sentences, and (c) pending return to prison after the 1963 arrest.

A prisoner lawfully on parole remains technically in custody (Pen. Code, § 3056), and is serving his sentence, although not in physical custody

(Ex parte Casey,