Michael L. Love v. C. J. Fitzharris, Warden, California State Prison, San Quentin, and the People of the State of California

Michael Louis Love, the appellee, is a California state prisoner, serving consecutive sentences for two violations of Cal. Health & Safety Code § 11500.5 [posses sion of narcotics for sale]. This Code section provides that persons convicted “shall be punished by imprisonment in the state prison for not less than 5 years nor more than 15 years and shall not be eligible for release ... on parole until [they have] served not less than 2% years in prison.” Cal.Penal Code § 3049, the general parole statute, provides in part that a prisoner may be paroled at any time after the expiration of one-third of his minimum sentence.

The State Department of Corrections, at the time Love began serving his sentence, took the position that in cases of single sentences § 11500.5 fixed the time when a prisoner would be eligible for parole, but where consecutive sentences had been imposed § 3049 applied. Thus the Department, consistent with this view and following its usual practice, sent Love a formal “Notice of Legal Status” advising him that, on the basis of the combined minimum sentences of ten years on his two convictions, he would be eligible for parole in one-third of that time, that is, three…