I respectfully dissent.
Contrary to the position taken by the majority, my analysis of the parole provisions of the Penal Code does not persuade me that the power to rescind a parole release date arises from the power to grant parole rather than to revoke it. Nor do I agree that the power to rescind a parole release date is one possessed exclusively by the Board of Prison Terms (Board).
*558The majority’s construction of the parole provisions of the Penal Code is based primarily upon the fact that sections 3041.5 and 3041.7 are the only provisions in the Penal Code that specifically refer to the rescission of a parole release date. However, the majority overlooks the fact that these sections do not purport to create the power to rescind a parole release date; rather, they acknowledge, by implication, the existence of such power and merely prescribe the procedure for its exercise. The source of that power lies elsewhere and, in my opinion, arises from the power to revoke parole, which is possessed equally by the Board and by the Governor, pursuant to sections 3060 and 3062 of the Penal Code.
In In re McLain (1960) 55 Cal.2d 78, 80-81 [9 Cal.Rptr. 824, 357 P.2d 1080], the Adult Authority (a predecessor of the Board) fixed the petitioner’s prison term and set his parole release date for November 17, 1958. However, the Adult Authority later learned that the prison disciplinary committee had found the petitioner guilty of complicity in a knifing which took place in the prison where he was confined. (Id., at pp. 81-86.) The Adult Authority then rescinded its prior order. The California Supreme Court held that this latter order by the Adult Authority could not be read as an order which merely suspended parole pending further investigation, but was clearly an order of “revocation.” (Id., at pp. 85-87.)
In a valiant effort to substantiate its position, the majority engages in an extensive discussion of what, in my perception, is a distinction without a real difference, namely, the Legislature’s use of the words “revoke” and “rescind.” Several California cases suggest, by their use of those terms, that they are interchangeable and, in their practical application, mean the same thing (e.g., In re Fain (1976) 65 Cal.App.3d 376 [135 Cal.Rptr. 543]; In re Clutchette (1974) 39 Cal.App.3d 561 [114 Cal.Rptr. 509]; Vogulkin v. State Board of Education (1961) 194 Cal.App.2d 424 [15 Cal.Rptr. 335]).
I find further support for my conclusion that the rescission of a parole release date is essentially an exercise of the power to revoke parole in In re Fain, supra, 65 Cal.App.3d 376, 391-392, where the court, citing In re McLain, supra, 55 Cal.2d 78, 84-87, stated that the power to rescind a parole release date had been recognized by the courts “as an adjunct of the [Adult Authority’s] plenary power to ‘suspend, cancel or revoke any parole,’ pursuant to [Pen. Code] section 3060 . . . .” Here, the majority has attempted to avoid the effect of that language by resorting to a dictionary definition of “adjunct” as “something joined or added to another thing but not essentially a part of it.” (Majority opn., ante, p. 551.) In my opinion, the majority has choosen to construe this language in a narrow, constricted fashion, placing undue emphasis upon the words “not essentially a part of *559it.” Of far greater significance, I believe, is the fact that the Fain court found the rescission of a parole release date to be an adjunct of the power to suspend, cancel or revoke rather than an adjunct of the power to grant parole. Thus the more reasonable construction of the Fain court’s language is that the power to suspend or rescind a parole release date stems from the power to revoke.
Nor do I find persuasive the majority’s reliance upon Azeria v. California Adult Authority (1961) 193 Cal.App.2d 1 [13 Cal.Rptr. 839]. Although that case does contain a statement that the Adult Authority, not the Governor, has the discretion to fix a defendant’s prison term and grant or withhold parole (id., at p. 5), that language is, at best, a gratuitous assertion. In that case, the Governor had made no attempt to exercise the power to revoke parole but merely expressed his desire that where there was a possibility that a prisoner might succeed on parole, he should be released. (Id., at p. 4.) As far as can be determined from a reading of Azeria, section 3062 of the Penal Code was never brought to the court’s attention nor considered by it.
Even if it could be said that the power to rescind a parole release date is not inherent in the power to revoke, I view this case as one which should be decided in accordance with the time-honored rule that the law will not require an idle or futile act. (Civ. Code, § 3532; People v. Redmond (1981) 29 Cal.3d 904, 917 [176 Cal.Rptr. 780, 633 P.2d 976]; M.C.A. v. State of California (1982) 128 Cal.App.3d 225, 238 [181 Cal.Rptr. 404].) The majority concludes that “the sole power relative to parole that the Governor shares with the board is the power to revoke the parole of a prisoner no longer in physical custody.” (Majority opn., ante, pp. 548-549.) Thus it is conceded that section 3062 of the Penal Code authorizes the Governor to revoke parole, for good cause, once a prisoner steps outside the prison gates. Such being the case, it seems pointless to hold that the Governor must wait for the parolee’s first step outside the confines of prison before taking action based upon information leading him to believe that the prisoner is not a suitable subject for parole.
Also, I cannot agree with petitioner’s assertions that the Governor’s executive order is an unconstitutional suspension of the writ of habeas corpus, or that it is in violation of the doctrine of separation of powers or that it is barred by the doctrine of res judicata or collateral estoppel. All of these arguments assume that the Governor intends to make his own decision as to Fain’s parole release date based upon information which has. already been considered by the Board. In my opinion, this assumption is erroneous. As the majority has itself observed, neither the Board nor the Governor may revoke or suspend parole without cause, and in an instance such as that now *560before us, such cause presumably consists of facts unknown to the Board at the time of its decision. (Majority opn., ante, p. 556, fn. 15.) At this stage of the proceedings, when the precise nature of the information possessed by the Governor is a matter for pure speculation, we must presume that the Governor’s official duty has been regularly performed (Evid. Code, § 664) and that he has come into possession of new information, not previously brought to the Board’s attention, which would establish good cause for a revocation of Fain’s parole.1
I would deny the petition.
Respondent’s petition for a hearing by the Supreme Court was denied September 30, 1983. Richardson, J., was of the opinion that the petition should be granted.
Of course, we must point out that the matter of public outcry has been put to rest by this court; hence it may not constitute the sole basis for revocation of parole.