In re Smith

By this application for the writ of habeas corpus petitioner, an inmate of Folsom State Prison, seeks his release upon the ground that on March 16, 1947, the term of his imprisonment as then fixed by the Adult Authority, with credits earned and allowed, expired. This contention, as will hereinafter appear, is not sustained by the record.

In 1942, petitioner began service of concurrent sentences for attempted robbery, robbery of the first degree and violation of section 503 of the Vehicle Code (driving or taking a vehicle in absence and without consent of owner). In 1944, he was released upon parole. Prior to the time of such parole petitioner’s term had been fixed at five, eight and five years, the sentences to run concurrently. His “ticket of leave” (which set forth the conditions of his parole) stated, among other things, “Expiration of Sentence March 16, 1947 with benefit of credits if allowed.” On February 18, 1947, petitioner’s parole officer reported to the Adult Authority that petitioner had violated a term of his parole in that he had been using alcohol to excess; that petitioner’s mother in Michigan had offered to give petitioner a home and arrange for employment for him; that the Parole Bureau was attempting to make arrangements with Michigan parole officers permitting transfer of petitioner to that state; that ‘ ‘ a change of environment may be of considerable assistance to him in re-establishing himself. However, subject’s violation of the parole regulations by drinking is of such a serious nature . . . that his parole term should be extended to maximum, then allowing future conduct to determine the length of term subject should serve.” Thereafter the Adult Authority made the following order dated March 7, 1947: Term of Robbery 1st degree charges refixed at 10 years. No credits for current period. ’ ’ This action of

Early in May, 1947, petitioner, without notice to or consent of his parole officer, left his place of residence and his employment and went to Michigan. His “ticket of leave” provided that such conduct was in violation of the terms of his parole. On May 26, 1947, petitioner’s parole officer advised the Adult Authority that petitioner had violated his parole in the above respects and that “Subject has apparently passed some forged checks . . . and a warrant has been issued for his arrest by the Los Angeles Police Department. ’ ’ Pursuant to the parole officer’s report the Authority ordered that petitioner’s parole be suspended and he be returned to prison. Petitioner was apprehended in Wisconsin, returned to Los Angeles, pleaded guilty to the forgery charge and served a sentence therefor in the county jail. Upon his release from the county jail he was returned to state prison and, after notice and hearing, the Adult Authority revoked his parole and forfeited six months’ credits.

It is petitioner’s position that, as stated above, the order of the Adult Authority dated March 7, 1947, was void and that, therefore, his term expired on March 16, 1947, and subsequent orders of the Adult Authority cannot revive such term. (See In re Shull (1944), 23 Cal.2d 745 , 753 [ 146 P.2d 417 ], which, petitioner contends, is analogous to the present situation: “[0]nce a prisoner has been allowed credits and by reason thereof his reduced term has expired, his term, as not reduced, may not thereafter be revived by a forfeiture of credits for conduct occurring after the expiration of his reduced term.”) Petitioner urges that the order dated March 7, 1947, was void for two reasons: first, because it was not actually made on March 7, 1947, but was made nunc pro tunc after March 16, 1947, when petitioner’s term, as then fixed, had expired; second, even if the order was made before expiration of the term fixed, it was invalid because it was made without petitioner’s receiving notice and an opportunity to be heard.

In support of his contention that the order was made nunc pro tune petitioner asserts that it is not “certified as a true and correct copy of the minutes of the Adult Authority.” Statutory provisions pertinent to authentication and use of such a copy are: “Documents of any other class [there is no

There is a disputable presumption that the minute entry of the Authority which recites the order, and which is evidenced by the certified copy, is truly dated; there are also similar presumptions that official duty has been regularly performed and that a person is innocent of crime or wrong. (Code Civ. Proc., § 1963, pars. 23, 15, 1.) Petitioner alleges no facts and produces no evidence sufficient to dispel these presumptions. He asserts that because of “the fact that no notice or hearing was given to petitioner, it is his stand that no such order was made on March 7, 1947.” Whether petitioner was given notice or hearing is not relevant to the date of the making of the order for, under the circumstances shown and as is hereinafter explained, the Authority was not required to give notice and opportunity to be heard prior to, or notice after, the making of the subject order. Petitioner asserts, further, that he has “.reason to believe that the re-

Petitioner next asserts that, assuming that the order of March 7, 1947, is correctly dated, it is void because the Adult Authority failed to comply with sections 2923 and 2924 of the Penal Code. The pertinent substance of those sections is a provision that the Authority (“unless such offender be outside the walls of the prison as an escape and fugitive from justice”) “may declare a forfeiture of . . . time credits theretofore earned by or allowed to” a prisoner only upon notice, hearing, proof and a finding that the prisoner was guilty of misconduct. The order of March 7, however, does not purport to “declare a forfeiture” of time credits; rather

Likewise without merit is petitioner’s contention that the order of March 7, 1947, violated section 3063 of the Penal Code. That section provides that “No parole shall be suspended or revoked without cause, which cause must be stated in the order suspending or revolting the parole.” The order of March 7 does not purport to revoke parole. There is no provision of law requiring that an order refixing the term of sentence state the cause of its making, and (we assume that such an order cannot be made upon mere caprice or for no reason) it cannot be said that the order, made pursuant to the parole officer’s factually unchallenged report and recommendation, was without cause.

Section 3020 of the Penal Code, which authorizes the Adult Authority to redetermine the length of time of imprisonment, does not require that the prisoner be given notice or opportunity .to be heard. Such requirement was eliminated in 1941. (Stats. 1941, eh. 106, § 15, p. 1110; see In re Etie (1946), 27 Cal.2d 753 , 759 [ 167 P.2d 203 ]; In re Borgfeldt (1946), 75 Cal.App.2d 83 , 85 [ 170 P.2d 94 ].) The only statutory provision as to notice in the case of such a redetermination is that “At least 30 days before the board [Authority] shall meet to fix and determine the length of time any prisoner shall ,be confined, the said board shall send written notice thereof to the judge of the superior court before whom the prisoner was tried and convicted, and to the district attorney and. the sheriff of the county from which the prisoner was sentenced.” (Pen. Code, §3022.) As petitioner points out, there is ho showing that the Adult Authority gave such notice; on the contrary it appears to be the position of the Authority that its action of March 7, 1947, was based on the parole officer’s report of February 18, 1947; thus there was not sufficient time after the Authority received the information which led .to its refixing .petitioner’s term for it to give the statutory 30-day notice,, .In;our opinion, failure of the Authority, under the circumstances shown, to give notice to

Petitioner next contends that the want of provision for notice and hearing before the Adult Authority redetermines the length of time a prisoner shall remain in custody is not in accord with due process of law (U. S. Const., Amendment XIV; Cal. Const., art. I, § 13). We cannot agree with petitioner that the action of the Authority in lengthening a term of imprisonment beyond that originally (and by law only tentatively) fixed but still within the maximum term provided for the offense of which his guilt has been adjudged, constitutes a deprivation of liberty within the meaning of the due process clauses of the federal and state Constitutions. Petitioner has been deprived of his liberty, in compliance with due process of law, by the trial court’s adjudication that he is guilty and the ensuing imposition of sentence for the indeterminate period; the Adult Authority, by administering the indeterminate sentence law, does not further deprive the prisoner of liberty. A prisoner (including one who is “constructively a prisoner under sentence in the legal custody and under the control of the Department of Corrections” [In re Marzec (1945), 25 Cal.2d 794 , 797 [ 154 P.2d 873 ]]) has no “vested right” to have the term of imprisonment which he is serving fixed or remain fixed at less than the maximum term prescribed by law (see In re Cowen (1946), 27 Cal.2d 637 , 641 [ 166 P.2d 279 ]; In re Hicks (1938), 28 Cal.App,2d 671 , 674 [ 83 P.2d 73 ]); i. e., in the case of peti

For the reasons above stated the writ is discharged and petitioner is remanded to the custody of the warden of Folsom State Prison.

Gibson, C. J., Shenlc, J., Edmonds, J., Carter, J., Tray-nor, J., and Spence, J., concurred.