In Re Payton

California Supreme Court May 10, 1946 No. Crim. 4692Published

Before: Shenk

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Holding. The court held that the June 14, 1943, order suspending the petitioner's parole was valid because it substantially complied with Penal Code section 3063 by referencing a detailed report, and the petitioner suffered no prejudice from the form of the order. Consequently, the petitioner's term had not expired when the Adult Authority refixed his sentence at the maximum.

Issues

Whether the June 14, 1943, order suspending parole was invalid for failing to state the cause of suspension as required by Penal Code section 3063.
Whether the petitioner's term of imprisonment had expired prior to the Adult Authority's order of February 9, 1945, refixing his sentence at the maximum.

Disposition. reversed

Quotations verified verbatim against the opinion

“That such a preliminary order of suspension is in substantial compliance with section 3063 of the Penal Code requiring that the cause for suspension be stated in the order”

“It follows that the suspension of parole of June 14, 1943, was valid, and that the petitioner’s term of imprisonment had not expired at the time of the order of February 9, 1945, refixing his sentence at the maximum.”

[195]

SHENK, J.

In this habeas corpus proceeding the People have appealed from an order of March 12, 1945, discharging the petitioner from custody.

On June 28, 1939, the petitioner was convicted on a charge of grand theft with the prior conviction of a felony. He was sentenced to imprisonment in the State Prison at San Quentin for the term prescribed by law. He entered the prison on January 27, 1940. The Board of Prison Terms and Paroles fixed his term at five years.

On November 12, 1941, the petitioner was released on parole. On June 9, 1943, a written report by a state parole officer was filed with the Board of Prison Terms and Paroles stating that the petitioner had been arrested on a charge of assault and battery committed upon the person of Miss Bmens (also known as Mrs. Frank Payton) at a specified time and place, and recommending suspension of parole pending disposition of the charge. On June 14,1943, the board suspended the petitioner’s parole by a written order showing that the cause of suspension was wilful violation of the terms and conditions of parole as stated in the report of June 9th, and directed that the petitioner be re-arrested and be retained in custody pending the further order of the board.

On June 24, 1943, the petitioner was convicted of the charge of assault and battery and served a sentence therefor. On July 20, 1943, he was returned to the state prison to serve the unexpired portion of the five-year term imposed pursuant to the commitment for grand theft. On July 29, 1943, a supplemental report was filed with the board by the parole officer showing the conviction and sentence on the assault and battery charge, and containing three other charges of violation of the parole conditions, specifically, indulgence in the use of intoxicating liquors, cohabiting with Miss Bmens who was not his wife and by whom he had had a child, and failure to support his minor children in the custody of his former wife from whom he was divorced. Between August 9 and 18, 1943, the petitioner was heard on the charges. He pleaded guilty to some and was found guilty as to others. The board thereupon affirmed its prior action of June 14th suspending parole, and recommended to the State Board of Prison Directors that all credits earned or to be earned by the petitioner be forfeited. On September 23, 1943, at a meeting of the State Board of Prison Directors, the recom

In Re Payton

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SHENK, J.

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