Opinion
FRIEDMAN, J.
Petitioner, a state prison inmate, seeks habeas corpus, charging fatal irregularities in the proceedings which culminated in his commitment to the state prison in January 1974 and in the revocation of his parole from a prison commitment of January 1966.
The 1966 commitment resulted from a Los Angeles conviction of second degree robbery. In November 1971 petitioner was released on parole. Although he was later convicted of driving while under the influence of narcotics, the Adult Authority in May 1972 continued him on parole. In August 1973 he was arrested in Los Angeles and jailed on a heroin possession charge, a felony. His parole was suspended. While the felony charge was pending, petitioner suffered two narcotics-connected misdemeanor convictions. In November 1973 he appeared before the Los Angeles superior court with counsel (the public defender) and pleaded guilty to heroin possession. The trial judge informed him, in effect, that he belonged in prison; that the court proposed to admit him to probation on the current felony charge on the assumption that the Adult Authority would return him to prison and revoke his parole; that the court proposed to direct one year county jail time as a condition of three years on proba[619]*619tion, the county jail time to be concurrent with time served in the state prison, “but reserving to the Court the fact that one of the conditions of the probation will be that he be violated upon his parole and returned to State Prison.” Upon acceptance of these terms by petitioner and his counsel, the court pronounced judgment but suspended execution of sentence on the conditions the judge had described. The court continued the proceeding to a designated date for the purpose of inquiry into the Adult Authority’s forthcoming action. Petitioner was returned to jail, with credit for time served prior to commitment.
In early December 1973 petitioner’s parole officer submitted a report to the Adult Authority, explaining that petitioner had absconded from parole supervision in May; that in July and again in August he had been arrested; on both occasions he had been under the influence of narcotics and his arm bore fresh needle marks; that the parole officer wanted to work with the parolee in arranging addiction treatment, narcotics testing, close supervision and job placement. Responding to the parole agent’s recommendation, the Adult Authority reinstated petitioner’s parole and continued him on parole.
On the date set, petitioner was brought before the trial court. Noting that the Adult Authority had not revoked the defendant’s parole, the court recalled that “the failure of the defendant to be committed to the State Prison” had been stated as a ground for revocation of probation. Thereupon the court revoked probation and committed petitioner to the state prison. He arrived at the prison on January 25, 1974.
Petitioner’s parole agent then filed a supplemental report with the Adult Authority, recommending that parole be revoked since “Subject was returned to prison on a redetermination of sentence.” Petitioner appeared before the Adult Authority and admitted the fresh conviction. His parole was revoked on April 15, 1974.
Although petitioner accepted probation on terms fixed by the Los AngelesSuperior Court, he may challenge an invalid condition of probation in this habeas corpus proceeding. (In re Bushman, 1 Cal.3d 767, 776 [83 Cal.Rptr. 375, 463 P.2d 727].) The order of the Los Angeles Superior Court conditioning continued probation on the Adult Authority’s granted the court by Penal Code section 1203.1, abdicated the continuing discretion reposed in the court and created an interference with the Adult Authority’s exercise of its statutory functions.
“When granting probation, courts have broad discretion to impose [620]*620restrictive conditions to foster rehabilitation and to protect public safety. Penal Code section 1203.1 authorizes the court to impose any ‘reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, . . . and specifically for the reformation and rehabilitation of the probationer.’ . . .
“A condition of probation imposed pursuant to Penal Code section 1203.1 is invalid if it (1) has no relationship to the crime of which the defendant is convicted, (2) relates to conduct that is not itself criminal, or (3) requires or forbids conduct that is not reasonably related to future criminality.” (In re Bushman, supra, 1 Cal.3d at pp. 776-777.)
The superior court’s probation order suspended execution of the prison sentence and decreed a year of jail custody if, but only if, the Adult Authority took defendant from jaü and decreed his return to state prison; alternatively, the probation order decreed a prison term if, but only if, the Adult Authority decreed the subject’s continued liberty on parole. The condition imposed by the court turned on the Adult Authority’s future decision and not on defendant’s behavior, criminal or noncriminal. Far from relating to the probationer’s criminal conduct, it didn’t “relate” to his conduct at all. It injected petitioner into a conflict of authority created by the judge’s determination to pit his own power and judgment against the power and judgment of the Adult Authority. Such a condition transcends the boundaries of judicial authority fixed by section 1203.1, as interpreted in In re Bushman, supra.
A court is vested with continuing discretion to continue a defendant on probation or to revoke probation. (Pen. Code, § 1203.3; People v. Lippner, 219 Cal. 395, 400 [26 P.2d 457]; People v. Walker, 215 Cal.App.2d 609, 611 [30 Cal.Rptr. 440].) The exercise of that discretion is a judicial power manifested through the judge’s personal examination of the case before him; it cannot be delegated to a nonjudicial agency. (See People v. Tenorio, 3 Cal.3d 89, 95 [89 Cal.Rptr. 249, 473 P.2d 993].) The order in question was an unlawful abdication of judicial discretion, making continued probation contingent upon the action of the Adult Authority, an agency independent of the court.
The Adult Authority, not the court, had statutory authority to determine whether to continue petitioner’s parole or to revoke it. (Pen. Code, § 3060.) If the court believed that petitioner belonged in prison rather than in jail or on conditional liberty, the court had power to deny probation and impose a prison sentence. In that eventuality the Adult Authority could exercise its own judgment regarding the existing parole. According to the [621]*621terms of the probation order, an Adult Authority action reinstating petitioner on parole would result in judicial revocation of probation and a sentence of imprisonment at the hands of the court; once petitioner returned to prison, there would be little logic in an Adult Authority action continuing him on parole from the earlier commitment. Through the mechanism of the probation order, the trial court imposed an advance veto on the Adult Authority’s decision to continue defendant at liberty and cornered the Adult Authority into a position where it had no practical alternative except to revoke parole. The probation order was an illegal interference with the Adult Authority’s conduct of its functions.
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Opinion
FRIEDMAN, J.
Petitioner, a state prison inmate, seeks habeas corpus, charging fatal irregularities in the proceedings which culminated in his commitment to the state prison in January 1974 and in the revocation of his parole from a prison commitment of January 1966.
The 1966 commitment resulted from a Los Angeles conviction of second degree robbery. In November 1971 petitioner was released on parole. Although he was later convicted of driving while under the influence of narcotics, the Adult Authority in May 1972 continued him on parole. In August 1973 he was arrested in Los Angeles and jailed on a heroin possession charge, a felony. His parole was suspended. While the felony charge was pending, petitioner suffered two narcotics-connected misdemeanor convictions. In November 1973 he appeared before the Los Angeles superior court with counsel (the public defender) and pleaded guilty to heroin possession. The trial judge informed him, in effect, that he belonged in prison; that the court proposed to admit him to probation on the current felony charge on the assumption that the Adult Authority would return him to prison and revoke his parole; that the court proposed to direct one year county jail time as a condition of three years on proba[619]*619tion, the county jail time to be concurrent with time served in the state prison, “but reserving to the Court the fact that one of the conditions of the probation will be that he be violated upon his parole and returned to State Prison.” Upon acceptance of these terms by petitioner and his counsel, the court pronounced judgment but suspended execution of sentence on the conditions the judge had described. The court continued the proceeding to a designated date for the purpose of inquiry into the Adult Authority’s forthcoming action. Petitioner was returned to jail, with credit for time served prior to commitment.
In early December 1973 petitioner’s parole officer submitted a report to the Adult Authority, explaining that petitioner had absconded from parole supervision in May; that in July and again in August he had been arrested; on both occasions he had been under the influence of narcotics and his arm bore fresh needle marks; that the parole officer wanted to work with the parolee in arranging addiction treatment, narcotics testing, close supervision and job placement. Responding to the parole agent’s recommendation, the Adult Authority reinstated petitioner’s parole and continued him on parole.
On the date set, petitioner was brought before the trial court. Noting that the Adult Authority had not revoked the defendant’s parole, the court recalled that “the failure of the defendant to be committed to the State Prison” had been stated as a ground for revocation of probation. Thereupon the court revoked probation and committed petitioner to the state prison. He arrived at the prison on January 25, 1974.
Petitioner’s parole agent then filed a supplemental report with the Adult Authority, recommending that parole be revoked since “Subject was returned to prison on a redetermination of sentence.” Petitioner appeared before the Adult Authority and admitted the fresh conviction. His parole was revoked on April 15, 1974.
Although petitioner accepted probation on terms fixed by the Los AngelesSuperior Court, he may challenge an invalid condition of probation in this habeas corpus proceeding. (In re Bushman, 1 Cal.3d 767, 776 [83 Cal.Rptr. 375, 463 P.2d 727].) The order of the Los Angeles Superior Court conditioning continued probation on the Adult Authority’s granted the court by Penal Code section 1203.1, abdicated the continuing discretion reposed in the court and created an interference with the Adult Authority’s exercise of its statutory functions.
“When granting probation, courts have broad discretion to impose [620]*620restrictive conditions to foster rehabilitation and to protect public safety. Penal Code section 1203.1 authorizes the court to impose any ‘reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, . . . and specifically for the reformation and rehabilitation of the probationer.’ . . .
“A condition of probation imposed pursuant to Penal Code section 1203.1 is invalid if it (1) has no relationship to the crime of which the defendant is convicted, (2) relates to conduct that is not itself criminal, or (3) requires or forbids conduct that is not reasonably related to future criminality.” (In re Bushman, supra, 1 Cal.3d at pp. 776-777.)
The superior court’s probation order suspended execution of the prison sentence and decreed a year of jail custody if, but only if, the Adult Authority took defendant from jaü and decreed his return to state prison; alternatively, the probation order decreed a prison term if, but only if, the Adult Authority decreed the subject’s continued liberty on parole. The condition imposed by the court turned on the Adult Authority’s future decision and not on defendant’s behavior, criminal or noncriminal. Far from relating to the probationer’s criminal conduct, it didn’t “relate” to his conduct at all. It injected petitioner into a conflict of authority created by the judge’s determination to pit his own power and judgment against the power and judgment of the Adult Authority. Such a condition transcends the boundaries of judicial authority fixed by section 1203.1, as interpreted in In re Bushman, supra.
A court is vested with continuing discretion to continue a defendant on probation or to revoke probation. (Pen. Code, § 1203.3; People v. Lippner, 219 Cal. 395, 400 [26 P.2d 457]; People v. Walker, 215 Cal.App.2d 609, 611 [30 Cal.Rptr. 440].) The exercise of that discretion is a judicial power manifested through the judge’s personal examination of the case before him; it cannot be delegated to a nonjudicial agency. (See People v. Tenorio, 3 Cal.3d 89, 95 [89 Cal.Rptr. 249, 473 P.2d 993].) The order in question was an unlawful abdication of judicial discretion, making continued probation contingent upon the action of the Adult Authority, an agency independent of the court.
The Adult Authority, not the court, had statutory authority to determine whether to continue petitioner’s parole or to revoke it. (Pen. Code, § 3060.) If the court believed that petitioner belonged in prison rather than in jail or on conditional liberty, the court had power to deny probation and impose a prison sentence. In that eventuality the Adult Authority could exercise its own judgment regarding the existing parole. According to the [621]*621terms of the probation order, an Adult Authority action reinstating petitioner on parole would result in judicial revocation of probation and a sentence of imprisonment at the hands of the court; once petitioner returned to prison, there would be little logic in an Adult Authority action continuing him on parole from the earlier commitment. Through the mechanism of the probation order, the trial court imposed an advance veto on the Adult Authority’s decision to continue defendant at liberty and cornered the Adult Authority into a position where it had no practical alternative except to revoke parole. The probation order was an illegal interference with the Adult Authority’s conduct of its functions.
The Supreme Court has declared that invalid conditions of probation are severable from valid conditions and do not affect the latter. (In re Allen, 71 Cal.2d 388, 394 [78 Cal.Rptr. 207, 455 P.2d 143].) Here the invalidity lay at the heart of the probation order; without it, the order would have been quite different or might not have been forthcoming at all. The vice goes deeper than the probation order and deeper than the judgment, for the invalid order was the product of a recorded plea bargain to which defendant and his court-appointed counsel agreed. The plea bargain was tainted by an illegal condition. Petitioner’s participation in the plea bargain does not bar him from attacking it. (People v. Dominguez, 256 Cal.App.2d 623, 629 [64 Cal.Rptr. 290]; People v. Blakeman, 170 Cal.App.2d 596, 598 [339 P.2d 202]; cf. In re Griffin, 67 Cal.2d 343, 347-348 [62 Cal.Rptr. 1, 431 P.2d 625].) Petitioner must be given an opportunity to withdraw a plea of guilty induced by the improper plea bargain. (People v. West, 3 Cal.3d 595, 610 [91 Cal.Rptr. 385, 477 P.2d 409].)
After the trial court had admitted petitioner to probation, the Adult Authority ordered his reinstatement on parole (which had been suspended earlier). The subsequent revocation of petitioner’s probation and his prison commitment at the hands of the Los Angeles Superior Court then became the basis for the Adult Authority’s action revoking parole. Invalidity of the superior court’s revocation order results in invalidity of its commitment, which in turn nullifies the basis for parole revocation. Petitioner should be returned to status quo ante.
Let a writ of habeas corpus issue directing the Adult Authority to vacate its order of April 15, 1974, revoking petitioner’s parole and its order of February 8, 1974, suspending parole. The Department of Corrections is ordered to return petitioner to the custody of the Los Angeles Superior Court. That court is directed to vacate its judgment and probation order dated November 23, 1973, its order revoking probation dated January 18, 1974, and its ensuing commitment of petitioner. The court is further di[622]*622rected to provide counsel and to permit petitioner, should he be so advised, to withdraw his plea of guilty to the charge alleged by information in case Number A-433531 and thereafter to proceed in accordance with law.
Richardson, P. J., concurred.