In re Campbell

GOODELL, J., pro tem. The petitioner claims that he is unlawfully imprisoned and restrained of his liberty. He was received at San Quentin on April 18, 1925, after conviction of robbery, and in due time the prison board fixed his term at ten years on one count and five years on another, to run consecutively. The deduction of five years and seven months allowable as credit for good conduct left nine years and five months to be served, and it was provided that the last four years and six months could be on parole. On November 18, 1930, he was paroled, with permission to go to Denver, Colorado, where'he had employment. On April 28, 1931, he was arrested for robbery in Denver, and at the June, 1931, meeting of the board the parole officer made a showing that petitioner had been tried for robbery, convicted, and sentenced to a term of from ten to twelve years in the Colorado penitentiary, whereupon the board ordered that his parole be suspended and revoked pending investigation, and that he be returned to custody. On March 19, 1937, petitioner was released from the Colorado penitentiary, and on March 24, 1937, was again lodged in San Quentin. On April 8, 1937, at a hearing held by the board, after due notice to the prisoner, he pleaded guilty to a violation of his parole, whereupon the board declared a forfeiture of .the five years and seven months’ credit. The time spent by [223]petitioner' outside San Quentin, between June 27, 1931, when his parole was suspended, and March 19, 1937, when he was taken into custody by the California officers, is five years, eight months and twenty-two days, which when added to April 18, 1940 (the expiration of the fifteen years’ term without credits), would fix the date for petitioner’s release as January 9, 1946.

In 1931 the legislature (Stats. 1931, pp. 1053, 1058) added to section 1168 of the Penal Code (effective August 14, 1931) the provision that “From and after the suspension, cancellation, or revocation of the parole of any prisoner and until his return to custody he shall be deemed an escape and fugitive from justice and no part of the time during which he is an escape and fugitive from justice shall be part of his term.” Petitioner contends that because this statute was not in effect when his parole was suspended it cannot apply to his case, and that it would operate retroactively as an ex post facto law if so applied; that his term expired on May 18, 1935, and that his extradition from Colorado and his confinement ever since have been illegal. In other words, petitioner’s position is that because there was no statutory provision on the subject, the five years eight months and twenty-two days should be credited as time actually served on his California sentence, notwithstanding he ivas then serving time in the penitentiary of another state. While it is true that in 1931 the legislature for the first time wrote that provision into the statute, the enactment was nothing but a statutory declaration and codification of what had been the law of this state for forty years, as declared by judicial decisions, for as far back as 1891 the Supreme Court in Ex parte Vance, 90 Cal. 208 [27 Pac. 209, 13 L. R. A. 574], held that the time of a prisoner's absence from imprisonment in violation of law “cannot be considered as having been spent in jail, in satisfaction of the judgment” and is “in effect, a technical escape, from which he can derive no advantage”. In that case Vance had been sentenced to pay a fine of $300 and to be imprisoned in the county jail until the fine was paid at the rate of one day for every dollar of the fine. Four days after sentence he was released by the sheriff and remained at liberty for over a year and a half. Upon being rearrested he contended, as this petitioner contends, that the term of his sentence had