In Re Raymond

NOURSE, J.

Petitioner was received at the state penitentiary at San Quentin about August 25, 1911, under a sentence of ten years for grand larceny. If entitled to the credits for good conduct allowed under section 1588 of the Penal Code, he should have been released February 25, 1918.

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The petition alleges that during the month of July, 1912, without previous notice and without opportunity of preparing or presenting any defense, he was taken from his cell and led before the board of prison directors, where his credits were forfeited without trial, and that he is accordingly still held in custody by the warden of the .penitentiary. Petitioner' relies on the provisions of section 1588, which grant to a prisoner the credits as a matter of right, subject to forfeiture only “after due proof of the offense and notice to the offender.”

The evidence produced at the hearing in brief is: Petitioner, with some twenty-five other prisoners, was charged with participating in a riot within the prison. The directors met in a room situated in a building where these prisoners had been placed in solitary confinement. One prisoner after another was called before the board and asked to enter his plea. When the petitioner was called he pleaded not guilty. No testimony was taken in his presence; he was not confronted by any witnesses and had no opportunity of presenting any defense. The witnesses produced by the attorney-general at the hearing did not controvert this positive evidence given on behalf of petitioner.

“This section [1588] requires that the board of directors, before they shall take action, shall have given notice to the offender and heard proof touching the offense.”

(In re Knowlton,

136 Cal. 107, 109, [68 Pac. 480].)

Upon the record before the court there is no escape from the conclusion that petitioner was not afforded the hearing required by the code when his credits were forfeited. For that reason he is entitled to the credits allowed by the code and, his term of service having expired, he should be discharged from custody.