In re Yutze

In July 1964 the Adult Authority cancelled Yutze’s parole. In October 1964, in response to a letter from the United States Department of Justice, the California Director of Corrections wrote, “. . . we will accept custody of . . . Yutze for concurrent service of his State and Federal sentences upon his delivery to our custody by your officer. ...”

On January 14, 1965, Yutze was released to the custody of the Department, and in March 1965 his parole was revoked.

The Department properly did not give Yutze credit on his California sentence for the time he served in federal institutions (1 year and 7 days). A prisoner on parole remains under the custody of the Department (Pen. Code, § 3056) and is serving his sentence although not confined in prison (Ex parte Casey, 160 Cal. 357 , 358 [ 116 P. 1104 ]; Aguilera v. California Dept. of Corrections, 247 Cal.App.2d 150 , 151 [ 55 Cal.Rptr. 292 ]). However, “From and after the suspension 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” (Italics added; Pen. Code, § 3064.)

Assuming for the moment that Yutze’s “local confinement” from August 14, 1963, until January 7, 1964, has no effect upon whether he should receive credit on his California sentence for the period he was in federal institutions, it seems clear that under the quoted section he was not entitled to such credit but must be deemed a “fugitive from justice” during that period. As we shall see, “custody,” as used in that section, does not include confinement in federal institutions under a federal judgment of conviction.

The return points out that a federal court’s recommendation that a federal sentence run concurrently with a prior state sentence constitutes surplusage. (Hash v. Henderson, 385 F.2d 475 , 477; Hamilton v. Salter, 361 F.2d 579 , 581; Bateman v. United States, ‘ 277 F.2d 65 , 69; Montos v. United States, 261 F.2d 39 , 40; see also Larios v. Madigan, 299 F.2d 98 , 100-101.) In Hash, supra, for example, where it was contended that since the federal court recommended that Hash’s three-year federal sentence run concurrently with a prior state sentence, he completed his federal sentence by serving three years in a state prison, the court rejected the contention, stating in part (at p. 477), “The Attorney General of the United States is given the right to designate where a sentence shall be served, 18 U-S.C.A. § 4082(a). Thus, the recommenda

tion of the District Court that Hash’s original sentence run concurrently with the state sentence then being served in a state prison was surplusage and could have been disregarded by the Attorney General. . . . The fact that the Attorney General chose initially to accept the court’s recommendation did not commit him to allow the prisoner, whatsoever the circumstances, to serve the full sentence concurrently. • • It thus appears that a federal sentence is consecutive with a prior state sentence if the United States Attorney General does not designate the state institution for service of the federal sentence.

To hold that confinement in federal institutions pursuant to a federal judgment of conviction is not to be credited toward a prior uncompleted California sentence does not leave such a parolee who commits a federal crime without protection against being required to serve consecutive federal and state sentences where the facts do not warrant the sentences being consecutive. A federal court in its judgment or a letter may recommend that a federal sentence run concurrently with a state sentence, and, although such a recommendation is not binding on the Attorney General, it is frequently followed by him (see Hamilton v. Salter, supra, 361 F.2d 579 , 581; see 41 F.R.D. 467 , 505), and if he designates the state prison for the service of the federal sentence the prisoner receives the benefit of concurrent sentences.

With respect to the previous assumption that Yutze’s “local confinement” from August 14, 1963, until January 7, 1964, has no effect upon whether he should receive credit on his California sentence for the period he served in federal institutions, no claim is made contrary to the assumption, and it is apparent that the matter assumed is correct. Manifestly it would be unreasonable to have the fortuitous circumstance that a parolee is first placed in such confinement before being confined in a federal institution determinative as to whether he is entitled to credit on his state sentence for the period he is confined in a federal institution.

The instant case differs from those holding that under section 3064 the Adult Authority, after suspending a defendant’s parole and ordering his return to prison, may not disregard or add to his prison term time served in a county jail in California under a misdemeanor sentence concurrent with his prison sentence (In re Fluery, 67 Cal.2d 600 , 601, 603 [ 63 Cal.Rptr. 298 , 432 P.2d 986 ]; Aguilera v. California Dept. of Corrections, supra, 247 Cal.App.2d 150 ,151; In re Patton, 225

Cal.App.2d 83 , 87 [ 36 Cal.Rptr. 864 ]). There the jail sentence was concurrent with the prison sentence and the effect of the Adult Authority’s disregarding the time served in jail would be that the prisoner would serve consecutive sentences, whereas here the federal sentence was not concurrent with the state sentence except for the period of Yutze’s incarceration in California institutions. Also there the county officers could not have held the prisoner in jail in defiance of the order for his return to prison (see e.g. Aguilera v. California Dept. of Corrections, supra, 247 Cal.App.2d 150 , 153), and his return to prison was thus delayed solely because the Adult Authority consented, whereas here the Adult Authority could not have compelled the federal government to surrender custody of Yutze (see In re Patterson, 64 Cal.2d 357 , 361 [ 49 Cal.Rptr. 801 , 411 P.2d 897 ]; Strand v. Schmittiroth, 251 F.2d 590 , 598).

The present case also differs from those holding that under section 3064 the Adult Authority may not disregard or add to the prison term time spent in jail under its own orders suspending, cancelling, or revoking parole. (In re Fluery, supra, 67 Cal.2d 600 , 603; In re Clark, 254 Cal.App.2d 1 , 2 [ 61 Cal.Rptr. 902 ]; Aguilera v. California Dept. of Corrections, supra.) In those cases, unlike the instant one, the prisoner was not serving a sentence imposed by another jurisdiction, and the Adult Authority had the power to secure the prisoner’s reasonably prompt return to prison.

Yutze has himself to blame for not' having completed service of his 1956 sentence. He has been given repeated opportunities by the Adult Authority both before and after his federal incarceration but each time has violated his parole and been returned to prison and on several of these occasions had a period of ‘ ‘ dead time ’ ’ before his return to custody.

The order to show cause is discharged and the petition for habeas corpus is denied. If upon finality of this decision the Adult Authority has not refixed petitioner’s term, he id ordered returned to prison for completion of his term. The Adult Authority might decide to refix his term in view of factors such as that we ordered his release in January ,1968, léss than one month before his term expired, and'it is possible he is now gainfully employed and leading a lawful life.

Traynor, C. J., McComb. J., Peters, J., Tobriner, J., Mosk, J., and Sullivan, J., concurred.