In re Klein

NOURSE, P. J. Petitioner Samuel Klein was charged in Los Angeles County with the crime of forgery and on November 4, 1937, he entered a plea of guilty. In December, 1937, he was granted three years’ probation with the first three months to be served in the county jail. Thereafter Klein was convicted in the Superior Court in San Francisco of a violation of Penal Code, section 476a—issuance of a cheek without sufficient funds with intent to defraud—and was sentenced to San Quentin Prison for the time provided by law. On July 14, 1939, petitioner was received at San Quentin where his imprisonment was fixed by the Board of Prison Terms and Paroles at six years with the last two years on parole. He was released on parole on August 12, 1941, but [601]was returned to Folsom Prison on December 30, 1941, as a parole violator. Petitioner was thereupon notified that the Los Angeles probation order had been revoked on July 7, 1939; on March 15, 1942, a judgment-commitment was issued against him to run consecutively with the San Francisco judgment. This was sent to the warden of Folsom Prison where he was confined and it is under this judgment that he is now held in custody. He was not present in the superior court when this judgment was entered. Upon Klein’s completion of imprisonment on the San Francisco judgment he was given a new number at Folsom and was informed that he was thereafter to serve under the Los Angeles commitment.

The prisoner heretofore filed a petition for a writ of habeas corpus with the District Court of Appeal of the Third District. The petition was granted, but as a result of a promise of a light sentence and immediate parole by state officials the petitioner withdrew his petition. This promise was not observed by the state. He was paroled on May 22, 1944, and later that year was inducted into the armed forces. In 1945, petitioner was given an honorable medical discharge from the service. His petition states that because of his discharge from the armed forces petitioner believed that he would not be required to report on parole to the California authorities. He was taken into custody in Massachusetts and returned to San Quentin on March 20, 1946, as a parole violator.

It is petitioner’s contention that the superior court in Los Angeles County had no jurisdiction to enter the judgment— commitment of March 15, 1942, under these circumstances— that, if section 1203.2a applies, the judgment of March 15, 1942, was not entered within time—that, if that section does not apply, his presence in court was mandatory.