In Re Cain

California Court of Appeal Aug 1, 1966 No. Crim. 4119Published

Before: Regan

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Holding. The court granted a writ of habeas corpus to transfer the petitioner to Washington state custody to allow him to serve his California and Washington sentences concurrently, as required by Penal Code section 669.

Issues

Whether a prisoner is entitled to be transferred to another state to serve sentences concurrently when the trial court failed to specify otherwise.
Whether a letter from a foreign state's parole board expressing an intent not to retake custody constitutes an official rejection of a tender of transfer.

Disposition. granted

Quotations verified verbatim against the opinion

“The writ of habeas corpus is granted for the purpose of transferring petitioner to the custody of an authorized representative of the State of Washington, in order that he may serve the uncompleted sentence previously imposed by that state.”

“Patterson also holds the wording of section 669 of the Penal Code to be unconditional and the transfer of petitioner not to be a matter of judicial or administrative discretion.”

REGAN, J.

Petitioner Clarence D. Cain, a prisoner at Folsom State Prison, by this petition for habeas corpus seeks to compel his return to the State of Washington, there to complete partially served Washington sentences and thus to serve his California sentences and the prior Washington sentences concurrently.

Petitioner is subject to two California judgments and commitments. He is also subject to three Washington sentences, two of life and one of not more than 10 years, each of which is to run consecutively.

Respondent states its opposition to the petition and seeks a dismissal thereof as follows:

“Normally, the petitioner here would be entitled to such an order, making him available to the prison authorities of the State of Washington, since he has an outstanding sentence in the State of Washington and his California sentences (by implication from silence

) are to run concurrently with the Washington sentence.

“However, two factors make such an order inappropriate in this case. The first of these is that the present intention of the State of Washington is not to retake custody of the petitioner. The second is that petitioner can gain no possible benefit from a transfer to Washington. ’ ’

Respondent’s first contention that the State of Washington does not intend to retake custody of petitioner is based upon a

[770]

letter dated November 8, 1965, wherein the Board of Prison Terms and Paroles of Washington stated: “In view of the amount of time that Cain has been incarcerated in your Institution, our Parole Board is not planning on returning him to the state of Washington as a Parole Violator following his release from your institution. . . . Upon our being advised that he has been accepted for supervision, our Parole Board will no doubt reinstate his parole. ’ ’

We do not find this letter to be an official refusal of the Washington authorities to accept the transfer of petitioner into its custody. The letter was one addressed to and received by the Public Defender of Sacramento County, petitioner’s counsel, in response to his communication to them. At most it can be construed as an expression of intent of the State of Washington on November 8,1965, but not made to the State of California and insufficient to constitute an official rejection of a proper tender of California to transfer the custody of petitioner to Washington.

In Re Cain

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REGAN, J.

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