In Re Taylor

SEAWELL, J.

Alleging that he is illegally confined and restrained of his liberty by the warden of Folsom prison, petitioner seeks by this application for a writ of

habeas corpus

to secure his release and discharge.

Petitioner was convicted in Los Angeles County on three counts of grand theft. He was received at San Quentin on August 18, 1928, and thereafter his term was fixed at four years for the first offense and two years for each two subsequent offenses, the sentences to run concurrently, so that his maximum sentence would be four years. With full allowance of credits on this term petitioner would be entitled to his release on August 18, 1931 (sec. 1168, Pen. Code). Prior to August 18, 1931, and on October 27, 1929, he was released on parole. On July 24, 1931, which was prior to the expiration of his term as reduced by a full allowance of credits, petitioner was sent to Folsom for violating his parole. On July 25th-26th the state board of prison directors ordered that the parole theretofore granted to petitioner “be suspended and revoked pending investigation of the complaint filed” against the petitioner. On July 31, 1931, petitioner was given the required notice of hearing of the charge of parole violation and the hearing thereon was set for August 1, 1931. On that date the hearing was continued, apparently without objection of petitioner, to August 8th and 9th, when the matter was partially heard, and then continued to August 14th, and after that to August 26, 1931, when the hearing was concluded, and upon the oral and documentary evidence before it the prison board determined “that due proof had been made that the prisoner has with evil intent violated the rules and regulations of the prison, was guilty of the offense specified in the complaint,

[115]

and should be punished therefor ... by a forfeiture of such time credits as he had heretofore earned, or may hereafter earn”. The propriety of this type of order was upheld in

In re Sanders,

47 Cal. App. 368 [190 Pac. 647].

Petitioner contends that on August 26, 1931, when the order of forfeiture of credits was made the prison board was without jurisdiction to make such order for the reason that his time (with full allowance of credits) had expired. This ' contention is based on the theory that at the time of his parole violation he had admittedly earned, and been allowed, a reduction of eight months on his time, and in addition thereto had been allowed an additional four months’ reduction by virtue of resolution of the board of prison directors dated July 1, 1931. This resolution purported to allow in advance, upon the recommendation of the warden, all credits earned by prisoners during the interim between the semiannual meetings of the board. Petitioner contends that with the allowance of these credits his term expired on August 18, 1931, which was prior to the date his parole was formally suspended, and the order made revoking all credits theretofore earned or thereafter to be earned by him.