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In re Torres

July 15, 2010

IN RE NICHOLAS TORRES ON HABEAS CORPUS.


ORIGINAL PROCEEDINGS. Petition for writ of habeas corpus granted. (Los Angeles County Super. Ct. No. PV000319).

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

CERTIFIED FOR PUBLICATION

INTRODUCTION

Penal Code section 3001, subdivision (a)*fn1 provides that a person who has been released on parole for five years, and has been on parole continuously for three years since release from confinement, shall be discharged within 30 days, unless it is decided for good cause, that the person will be retained on parole.

Nicholas Torres (petitioner) was released to serve a five-year parole term in November 2005. Torres was on parole continuously for three years. In December 2008, during the 30-day review period when the Board of Parole Hearings (Board) was required to determine whether to retain petitioner on parole, petitioner was returned to custody on a parole violation charge. The Department of Corrections and Rehabilitation (Department) did not recommend that petitioner be retained on parole, and the Board did not retain petitioner on parole, during the 30-day review period.

The Board revoked petitioner's parole in February 2009 after concluding that he had violated a condition of his parole, and retained him on parole in March 2009. Petitioner filed a petition for habeas corpus, arguing that that under section 3001(a), his parole term had expired by operation of law in December 2008. Therefore, according to petitioner, the Board had no jurisdiction to revoke his parole in February 2009 and retain him on parole in March 2009. We issued an order to show cause and provided the parties with the opportunity to brief and argue the matter.

We grant the petition. Because petitioner was continuously on parole for three years since release from confinement, pursuant to section 3001(a), the Board was required to retain petitioner on parole during the 30-day review period following the three years of continuous parole. The Board's failure to retain petitioner during this 30-day review period resulted in the expiration of petitioner's parole by operation of law notwithstanding petitioner's return to custody during that period. Because petitioner's parole expired in December 2008, we conclude that the Board did not have jurisdiction to revoke petitioner's parole in February 2009 and retain him on parole in March 2009.

BACKGROUND

On October 16, 2003, petitioner pled guilty to one count of committing a lewd or lascivious act upon a child (§ 288, subd. (a)). The superior court sentenced him to three years in state prison. On November 22, 2005, petitioner was released to serve a five-year parole term.*fn2

In October 2007, petitioner was returned to custody and charged with failing to register as a sex offender. On November 6, 2007, the Board found that petitioner had failed to register as a sex offender, revoked petitioner's parole, and ordered him to serve a term of seven months in custody. Petitioner served the seven months and on April 29, 2008, petitioner was again released on parole.

On July 7, 2008, petitioner filed a petition for writ of habeas corpus in the superior court challenging the Board's November 6, 2007 decision revoking his parole. Petitioner argued that the Board violated his right to due process when it denied him the opportunity to call a witness from the Ventura County Sheriff's Department who could testify that petitioner had in fact registered as a sex offender.

On November 18, 2008, the superior court ruled that the Board should have permitted petitioner the opportunity to call the witness who could testify about his compliance with the sex offender registration requirements, and granted his petition for writ of habeas corpus. The superior court vacated the Board's November 6, 2007 decision revoking petitioner's parole and ordered the Board to conduct a new revocation hearing concerning the October 2007 charge within 30 days of the court's order.

On December 11, 2008, Curtis Knecht, a clinician at a center where petitioner was attending sex offender counseling, notified petitioner's parole officer that he had discharged petitioner from sex offender group therapy. According to Knecht, petitioner was not actively participating in therapy and was demonstrating disruptive behavior during therapy. On December 16, 2008, petitioner was returned to custody and charged with failing "to actively participate in his sex offender group therapy as required per his special condition of parole."

On December 17, 2008, the Board postponed the new revocation hearing that was ordered by the superior court on November 18, 2008. According to the Board's minutes, the witness that could testify regarding petitioner's sex offender registration compliance had not been subpoenaed to attend the hearing. On January 6, 2009, the Board held the new revocation hearing and concluded that there was insufficient evidence that petitioner had failed to register as a sex offender in October 2007, and dismissed all allegations to that effect.

On January 14, 2009, petitioner was released from custody pending the Board's findings on the charge that petitioner had violated his parole by failing to participate in mandatory sex offender counseling.

On February 25, 2009, the Board concluded that petitioner had violated a condition of his parole by failing to participate in mandatory sex offender therapy. The Board revoked petitioner's parole and ordered him to return to custody for a period of five months. On March 2, 2009, while petitioner was in custody, the Board determined that there was good cause to retain petitioner on parole. This order was based on a February 19, 2009 recommendation by petitioner's parole agent, a February 19, 2009 concurrence by the parole ...


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