In Re Albori

SPENCE, J., pro tem.

Petitioner, an inmate of the state prison at San Quentin, seeks his release on

habeas corpus.

The facts are not in dispute. No return to the writ was filed herein, but it was stipulated upon the hearing “that the allegations of fact set forth in the petition are true; that the petition may stand as a return to the writ and also as a traverse thereto”. It appears that petitioner was convicted on two charges of assault with a deadly weapon. For each of said offenses he was sentenced to be confined in the state prison at San Quentin for the term prescribed by law and he was thereafter received at said prison on April 20, 1929. On October 28, 1931, the board of prison terms and paroles fixed petitioner’s term of imprisonment on said two sentences at seven years each, the terms to run consecutively. Said board also made its order granting petitioner five years on parole. Petitioner has been continuously confined in the state prison since being received there on April 20, 1929, and has been allowed full time credits during his confinement by resolutions duly adopted by the board upon recommendation of the warden.

This proceeding has arisen by reason of a difference of opinion as to the manner of computing the time credits to which petitioner is entitled. The parties seek the opinion of this court as to whether said credits “are to be calculated under the statute in force at the time of his conviction or should be calculated under the statute now in force”. Section 1168 of the Penal Code, which now provides for such time credits, has been amended twice since petitioner entered the prison, but subdivision 6 thereof provides, “The provisions of this section are to apply to all prisoners now serving sentences in the state prison.” We believe it clear that petitioner’s time credits are to be calculated under the provisions of said section as amended. (See

In re Kepford,

217 Cal. 538 [20 Pac. (2d) 333].)

[36]

The further question has arisen as to whether under said section such time credits should he computed on a single “term of confinement” of fourteen years or upon two separate “terms” of seven years each. The parties seem to be agreed upon the proposition that if the computation is to be made upon the first basis, then petitioner was entitled to his release upon parole on February 20, 1933, while if the computation is to be made upon the second basis, he will not be entitled to such release until October 20, 1933. The difference in these computations can best be explained in figures. Under section 1168 of the Penal Code, a full allowance of time credits on a fourteen-year term amounts to five years and two months, leaving eight years and ten months to be served. Deducting from said period of eight years and ten months, the five-year period of parole allowed by the board, a period of three years and ten months remains. Petitioner had served three years and ten months on February 20, 1933. On the other hand, a full allowance of time credits on a seven-year term amounts to two years and three months. If petitioner’s time credits are computed on each of the two seven-year terms independently and said credits are added, then the full allowance of time credits amounts to four years and six months, leaving nine years and six months to be served. Deducting from said period of nine years and six months, the five-year period of parole allowed by the board, a period of four years and six months remains. Petitioner will not have served four years and six months until October 20, 1933.