Frank STURM, Appellant, v. CALIFORNIA ADULT AUTHORITY, Lawrence E. Wilson, Warden of San Quentin State Prison, California, et al., Appellees, 395 F.2d 446

PER CURIAM. In March 1957 appellant and a code-fendant were convicted of first degree robbery [Cal.Pen.Code, § 211] and were both sentenced to imprisonment for the term prescribed by law, which is from five years to life. (Cal.Pen.Code, §§ 213, 671, 1168). In 1959 the California Adult Authority, pursuant to Cal.Pen.Code, § 5077, fixed the indeterminate sentences of appellant and his codefendant at six years. Because of an infraction of the prison rules by appellant, the Adult Authority in 1960 rescinded its previous determination of appellant’s term. (Cal. Pen.Code, § 3020).

In July 1962, after appellant had again broken prison rules, the Adult Authority redetermined his sentence at a term of ten and one-half years pursuant to Cal.Pen.Code, § 3020. Appellant was released on parole in October 1962, but his parole was cancelled in September 1963; he is now serving his redetermined ten and one-half year term. While appellant remains incarcerated, his codefendant has been discharged after completion of his sentence as originally fixed by the Adult Authority. Appellant has unsuccessfully sought a writ of habeas corpus in the state courts challenging his continued incarceration.

In March 1967 appellant petitioned for a writ of habeas corpus in the United States District Court, but his petition was denied without a hearing or the issuance of an order to show cause. He appeals from the District Court’s denial of his petition for habeas corpus, challenging his continued incarceration on several grounds. First, appellant argues that he was denied due process because the Adult Authority, by redetermining his sentence after it had once been fixed, acted outside its statutory authority under Cal. Pen.Code §§ 3020, 5077.

The California courts, however, have consistently held that: “[t]he Adult Authority, by statute, has exclusive jurisdiction to fix the length of time a prisoner must serve within the limits of an indeterminate sentence. (Pen.Code §§ 3020, 5077.) One who is legally convicted has no vested right to the determination of his sentence at less than maximum [citations], and hence the authority ‘may redetermine such sentences as conditions require’.” In re Schoengarth, 66 Adv.Cal. 288, 295, 57 Cal.Rptr. 600, 604, 425 P.2d 200, 204 (1967).

The California Supreme Court has explained that the original trial and conviction resulted in the “imposition of a sentence that was indeterminate, and until fixed, amounted to a maximum sentence provided for the crime in question. When the Authority reduces a maximum sentence, its action, in the nature of things, is tentative and may be changed for cause.” In re McLain, 55 Cal.2d 78, 85, 9 Cal.Rptr. 824, 829, 357 P.2d 1080, 1085 (1960), appeal dismissed, cert. denied, 368 U.S. 10, 82 S.Ct. 18, 7 L.Ed.2d 18 (1961).

The California courts have clearly recognized the statutory authorization for the Adult Authority to redetermine a sentence; this court has previously stated that a state court’s

interpretation of its statute does not raise a federal question. In re Costello, 262 F.2d 214 (9th Cir. 1958) (per curiam). Appellant next contends that the redetermination of his sentence from six years to ten and one-half years was, in reality, a consecutive four and one-half year sentence for his infractions of the prison rules. Appellant contends that this penalty is excessive and constitutes cruel and unusual punishment under the eighth amendment. The basic premise of appellant’s argument — that his sentence for the robbery conviction was permanently determined at six years' — -is incorrect.

As noted previously, all indeterminate sentences are for the maximum, and any determination by the Adult Authority is only tentative. Therefore, it is not accurate to characterize the re-determination of the appellant’s sentence as an imposition of any penalty for the infractions, when the redetermined sentence was within the limits of the penalty for his conviction. Appellant also asserts that the statutory provisions empowering the Adult Authority to determine sentences constitute an illegal delegation of authority by the California Legislature.

Again, however, no federal question is raised by this claim, for such matters are for determination by the State. Dreyer v. People of State of Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 47 L.Ed. 79 (1902). Finally, appellant argues that since his codefendant has been released, his continued imprisonment violates equal protection. The equal protection clause of the Fourteenth Amendment requires only that state laws be applied uniformly to situations that cannot be reasonably distinguished. Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).

The California court has pointed out that “[a] major purpose of the indeterminate sentence law, Penal Code, §§ 1168, 3020 et seq., is to permit individual treatment of offenders, according to the best judgment of the authority. It follows that the fact that other prisoners have had their sentence reduced, or been granted parole, affords no ground for complaint by petitioner.” Azeria v. California Adult Authority, 193 Cal.App.2d 1, 5, 13 Cal.Rptr. 839, 842 (1961) (Duniway, J.).

Here, appellant had twice violated prison rules and it was not unreasonable for the Adult Authority to treat him differently than his code-fendant. None of appellant’s claims has merit; the District Court’s order denying the petition for habeas corpus is therefore affirmed. On Petition for Rehearing The petition of appellant for rehearing is denied.