APPEAL from an order of the Superior Court of Los Angeles County, Peter Paul Espinoza, Judge. (Los Angeles County Super. Ct. No. PV000467)
The opinion of the court was delivered by: Kriegler, J.
CERTIFIED FOR PUBLICATION
The California Department of Corrections and Rehabilitation (Corrections) appeals from the superior court's order granting Paris P. Stone's petition for writ of habeas corpus and ordering him released forthwith from the custody of Corrections, based on a finding that the Board of Prison Hearings (Board) failed to give Stone written notice of the Board's decision to retain him on parole, thereby rendering the retention illegal and depriving the Board of jurisdiction to later revoke Stone's parole. At the time of the superior court's ruling, Stone had been returned to custody after the Board revoked his parole based on findings that Stone violated his parole terms by associating with prohibited persons and making criminal threats (Pen. Code, § 422)*fn1 to his wife--the same offense for which he was originally incarcerated.
We granted Corrections' request for an immediate stay and now reverse the superior court's order. As we explain, even assuming the Board violated Stone's constitutional due process rights by failing to give timely written notice of its retention decision, the superior court's remedy was in excess of that authorized by law, which merely required an order to effectuate Stone's opportunity to appeal the Board's retention decision. Moreover, because the Board's retention decision was timely, it maintained parole jurisdiction over Stone, such that it was authorized to revoke his parole.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
On October 2, 2004, Stone was convicted of making criminal threats in violation of section 422 and sentenced to four years in prison. The offense arose out of a domestic dispute at the home of his wife, who had obtained a temporary restraining order against Stone. On April 3, 2008, Stone was released from prison and placed on parole for a period of three years, making his discharge date April 3, 2011. One of his parole conditions was that he "shall have no contact with the victim [Stone's wife] or her family without the approval from [the Division of Adult Parole Operations]."
On March 3, 2009, Parole Agent Bernadette Caraway recommended that Stone be discharged from parole. The discharge review date was April 3, 2009. If early discharge were granted, the effective discharge date would have been May 3, 2009. However, the "controlling" discharge date was listed as April 3, 2010. On March 9, 2009, the Board rejected the early discharge recommendation and retained Stone on parole, citing his serious criminal history that included crimes of violence and weapons violations.*fn2 As discussed in more detail infra, the superior court found Stone never received written notice of the Board's decision to retain him on parole.
Stone was arrested on May 8, 2009, for violation of parole, based on his wife's complaint to the police that Stone had threatened and harassed her. On May 6, she told the police that Stone had been sending her threatening text messages since April 3, 2008. She showed the police two text messages containing threats such as, "FU I'LL SHOW YOU" and "NO THREAT PROMISE U WILL FEEL THIS ONE I'LL WAIT TO CATCH U OFF GUARD."
On May 13, 2009, Stone acknowledged receipt of Notice of Parole Revocation Rights informing him that the revocation charges had been referred to the Board for hearing and determination. Stone was in custody and present at the parole revocation hearing on June 8, 2009. The Board found Stone associated with prohibited persons and made criminal threats, based on the testimony of the victim and the evidence of the text messages sent to her. Parole was revoked and Stone was returned to custody for 11 months.
Stone filed the underlying habeas corpus petition on February 19, 2010, in which he claimed the Board failed to give him notice of the decision to retain him on parole, as required by the Board's internal regulations and section 3001.*fn3 Having failed to transmit the required notice, Stone alleged, the retention order was invalid. As a result, Stone was discharged from parole by operation of law on May 3, 2009, and the Board lost jurisdiction to revoke his parole after that discharge date. Thus, when Stone visited his wife on May 4, he was no longer subject to the parole conditions. His wife's "false report" to the police about his harassment and threats, therefore, did not provide a basis for revoking parole and imposing a period of incarceration. Among other remedies, Stone sought his immediate release from custody.
On April 26, 2010, the superior court ordered Corrections to file an informal letter response to Stone's habeas corpus petition, addressing "whether petitioner was effectively discharged from parole by operation of law as of May 3, 2009." After the parties filed those responses, the court issued an order to show cause why the petition should not be granted. Citing In re Nesper (1990) 217 Cal.App.3d 872 (Nesper), the court requested the parties to address whether Stone ever received notice of the Board's action to retain him on parole.
In the return to the order to show cause, Corrections presented the declaration of Floyd Nakashima, Stone's parole agent from March to June 2009. Agent Nakashima declared that it was his "practice and procedure to provide parolees with written notice of their retention decisions in-person." He met with Stone on March 17, 2009, and it would have been his practice to give him the written notice at that time. He also would have met with him twice a month for regular parole meetings. The agent never told Stone he had been discharged from parole.
On November 8, 2010, the superior court issued its order granting Stone's habeas corpus petition. The court found no evidence that the Board or a parole agent provided Stone with actual written notice of the Board's retention decision and rejection of early discharge. The court found Agent Nakashima's declaration as to his practice and procedure unresponsive and unconvincing. Relying on Nesper, the court found the failure to provide notice of the Board's retention decision violated Stone's right to due process. That violation could not be deemed harmless beyond a reasonable doubt, the court reasoned, because Stone waited until the day after he would have been discharged (absent that order) before visiting his wife. That is, the court found Stone suffered prejudice in the constitutional sense because he apparently believed he had been discharged on May 3 and would not have made the visit or sent the threatening text messages if the Board had provided notice of his retention. Pursuant to Nesper, the court ...