The petitioner applied to the Superior Court of the State of California, in and for the County of Marin, for a writ of mandamus. The trial court made findings in favor of the respondent. From the judgment denying the writ the petitioner has appealed.
The controversy involved the right of the petitionеr to receive an order of release from the state prison located at San Quentin. That controversy arises by reason of сertain disputes regarding the legality and effect of certain commitments and certain alleged nunc pro tunc orders amending the same. Heretofоre the petitioner was indicted for the commission of two different assaults with intent to commit murder. One action was numbered 34,233, the other actiоn was numbered 34,266 of the Superior Court of the State of California, in and for the County of Los Angeles. On September 18, 1928, said court caused a judgment to be entered in action number 34,233 as follows:
“Whereas the said Marco Albori, having been duly found guilty in this court of the crime of assault with a deadly weapon, a felony, it is therefore ordered, adjudged and decreed that the said Marco Albori be punished by imprisonment in the State Prison of thе State of California at San Quentin for the term prescribed by law.
“The defendant was then remanded to the custody of-the sheriff of the county оf Los Angeles.
“Done in open court this 13th day of September, 1928.
“Ten days stay of execution of sentence is granted.”
On the same day it caused a judgment in identically the same words to be entered in action number 34,266. On January 28, 1931, the trial court made an оrder in action number 34,233 as follows:
“It is ordered that the sentence in the above entitled action run concurrently with case No. 34,266.
“This order is made nunc pro tunc as of September 13, 1928.” *621 stances thаt a defendant is required to serve, remains wholly with the parole board, or the prison board, or whatever it is called, and that the court has no jurisdiction, as I construe the law, to determine whether the judgments and sentences shall run consecutively or concurrently. What is your judgment on thаt, Mr. Clark ?
*617 On the same date in action number 34,266 the trial court made the same identical order inserting a "different number. On October 27,1931, at a meeting of thе board of prison terms and paroles the matter of fixing the term of the petitioner being under consideration an order was made: “Crime—Assаult with deadly weapon—2 counts consecutive—Term 7 years and 7 years—consecutive.” Claiming that the board of prison terms and paroles misconstrued the law and that in truth and in fact the term of the petitioner has expired, the latter commenced this proceeding.
Formerly the law applicable to the government of the state prisons was contained in chapter 264, Statutes of 1889. That statute was codified in 1907 and its provisions were carried into title 1, part 3 (secs. 1572-1596) of the Penal Code. At the same time section 1579 was added as new matter.
Formerly the power to fix the term of a prisoner rested with the superior court in which the prisoner was convicted. Chapter 527, Statutes of 1917 (sec. 1168 of the Penal Code) made a material change. It provided that the trial court should sentence the prisoner to be confined in the state prison; but, the power to fix the prisoner’s term was vested in the state board of prison directors. Later the powers of that board ovеr such matters were vested in the board of prison terms and paroles. (Chap. 487, Stats. 1931.)
An examination of the statutes discloses that the state рrisons are under the government and management of the state board of prison directors. Said board has the power to appоint a warden and a clerk. No clerical duty is imposed on the warden personally. On the clerk is imposed the duty of keeping the accounts and performing “such other duties as may from time to time be required of him by the board of directors”. Solely on the board of prison terms and рaroles is imposed the duty of carrying into effect the provisions of section 1168 of the Penal Code. It meets at each prison. It is authоrized to appoint a secretary and prescribe his duties and it has appointed as such secretary the clerk of the state bоard of prison directors and has prescribed his duties. The clerk is “the keeper and official custodian of all the official recоrds and files, at, of, in, and for said prison”. The statute does not contain any clause that gives to the warden any power to alter, amend, or change any order made by the board of prison directors or made by the board of prison terms and
*618
paroles. Nor do we find any provision that at any time or under any conditions the warden may fix the term of imprisonment of any prisoner. As executive officer of the prison, the warden has authority to examine the records of the action, ascertain the exact judgment which the trial court ordered and report the facts to the board of prison terms and paroles. In a
habeas corpus
proceeding such facts may be inquired into.
(In re Mann,
The judgment appealed from is affirmed.
Nourse, P. J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 20, 1937, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 22, 1937.