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In re Chaudhary

March 13, 2009

IN RE KAILASH CHAUDHARY, ON HABEAS CORPUS.


(Santa Clara County Super. Ct. No. 108084). Honorable Diane Northway.

The opinion of the court was delivered by: Mihara, J.

CERTIFIED FOR PUBLICATION

Penal Code section 3000.1 provides that a person convicted of a second degree murder that occurred after January 1, 1983 is subject to lifetime parole and becomes eligible for discharge from parole "when [such] a person . . . has been released on parole from the state prison, and has been on parole continuously for five years . . . ." (Stats. 1982, ch. 1406, § 4.)

Respondent Kailash Chaudhary was convicted of the 1986 second degree murder of his ex-wife and incarcerated in state prison. He was released on lifetime parole in March 2005. Prior to his release on parole, Chaudhary spent an additional three years and 10 months in prison beyond the length of the term set by the Board of Prison Terms (the Board) when it granted him parole. Two years and six months of this prison time occurred after the effective date of the Board‟s parole grant, because the Governor reversed that grant. The Governor‟s reversal was subsequently overturned by this court, resulting in Chaudhary‟s release.

In 2007, Chaudhary filed a petition for a writ of habeas corpus in the superior court contending that the time he spent in prison after the effective date of the Board‟s parole grant should be applied toward Penal Code section*fn1 3000.1‟s parole discharge eligibility requirement. He sought a discharge from parole or a parole discharge review hearing. The superior court credited his claim that this period of time should be credited against section 3000.1‟s parole discharge eligibility requirement and directed the Board to hold a discharge review hearing.

Appellant Matthew Cate, the Secretary of the California Department of Corrections and Rehabilitation, (the Secretary) appeals from the superior court‟s order. The Secretary argues that time Chaudhary spent in prison prior to his release on parole cannot be credited against section 3000.1‟s five-year parole discharge eligibility requirement. We agree and reverse the superior court‟s order.

I. Background

After 19 years in prison, Chaudhary was released on parole on March 28, 2005. His release on parole followed a grant of parole by the Board with an effective date of September 9, 2002, a reversal of that parole grant by the Governor, and a decision by this court vacating the Governor‟s reversal and reinstating the Board‟s parole grant. It is undisputed that Chaudhary spent three years and 10 months in prison beyond the length of the term set by the Board when it granted Chaudhary parole, and that two years and six months of this prison time occurred after the effective date of the Board‟s grant of parole.

In June 2007, Chaudhary filed a petition for a writ of habeas corpus in the superior court. This petition sought termination of his parole.*fn2 Chaudhary argued in his petition that the Governor‟s unjustified reversal of the Board‟s grant of parole resulted in his serving the additional two years and six months. He maintained that this period of incarceration should be credited against section 3000.1‟s parole discharge eligibility requirement, which would make him immediately eligible for discharge from parole. The superior court denied his petition "without prejudice" because the petition failed to identify the length of Chaudhary‟s parole period. The court urged Chaudhary to exhaust his administrative remedies.

In August 2007, Chaudhary filed a second petition, this time supported by evidence that he had been notified in writing, at the time of his release on parole, that his parole period was three years. In October 2007, the superior court issued an order to show cause on the second petition and appointed counsel.

The Secretary filed a return in which he pointed out that Chaudhary was subject to a "lifetime period of parole" under section 3000.1. The Secretary conceded that Chaudhary had spent 17 years and 11 months in custody, and that the term set by the Board was 14 years and one month. He argued that Chaudhary had not met section 3000.1‟s parole discharge eligibility requirement because he had not served five continuous years on parole after his release from prison. The Secretary maintained that the time spent by Chaudhary in custody beyond the length of his term could not be applied to satisfy section 3000.1‟s parole discharge eligibility requirement.

Chaudhary filed a traverse in which he conceded that he was subject to lifetime parole but asked the court to order the Board to discharge him from parole unless the Board could show good cause for his retention on parole.

The superior court issued a second order to show cause. The court ordered the Secretary to show cause why Chaudhary‟s time spent in prison beyond the length of his term should not be applied toward section 3000.1‟s parole discharge eligibility requirement, and why there was good cause to retain him on parole.

The Secretary filed a second return in which he contended that section 3000.1‟s parole discharge eligibility requirement was not subject to reduction for additional time spent in prison. Chaudhary filed a second traverse in which he made ...


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