Torres v. Department of Corrections & Rehabilitation

Opinion

YEGAN, J.

The traditional function of a petition for writ of habeas corpus is to test the legality of actual governmental restraint of the person. Formerly, there was a requirement of actual physical confinement. Our California Supreme Court “relaxed” this rule and designed the concept of “constructive custody” to allow a parolee, who was not actually physically confined, to prosecute the writ. (In re Marzec (1945) 25 Cal.2d 794 [154 P.2d 873]; see 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Writs, § 16, pp. 619-621.) The “constructive custody” concept was not designed…