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In Re Mark anderson

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)


January 9, 2012

IN RE MARK ANDERSON, ON HABEAS CORPUS.

(Super. Ct. No. CM15686)

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

In re Anderson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In 2001, petitioner was convicted on a plea of no contest to several counts of violating Penal Code section 288 and was sentenced to state prison for eight years and eight months. (Further undesignated section references are to the Penal Code.) At the time of the offenses, section 3001, subdivision (a), provided that one convicted of a violent felony (including section 288) who is released on parole and remains on parole continuously for two years shall be discharged from parole within 30 days, unless the Department of Corrections and Rehabilitation (CDCR) recommends to the Board of Parole Hearings (the Board) that the person be retained on parole and the Board determines the person will be so retained. (Stats. 1996, ch. 357, § 1, p. 2456.)

Petitioner was released on parole in November 2008 for a term of five years. By that time, section 3001, subdivision (a), had been amended to increase the continuous parole requirement from two years to three for those, like petitioner, who have been convicted of a violent felony and released on parole for a period of more than three years but no more than five. (Stats. 2006, ch. 337, § 46, as amended by Prop. 83, § 19, Ballot Pamp., Gen. Elec. (Nov. 7, 2006).)

Petitioner initiated this action contending he is subject to the version of section 3001, subdivision (a), in existence at the time of his offenses and, because CDCR did not recommend his retention on parole and the Board did not determine he should be retained on parole during the 30-day period following two years of continuous parole, he is entitled to immediate discharge from parole. Petitioner contends application to him of the amended version of section 3001, subdivision (a), would violate the ex post facto clauses of the state and federal constitutions.

We conclude petitioner has failed to demonstrate that application to him of the amended version of section 3001, subdivision (a), violates ex post facto principles, because the record is devoid of evidence that the change from two to three years in eligibility for early discharge from parole is likely to result in an increase in the overall punishment imposed on the original crimes. We therefore conclude petitioner was not entitled to discharge from parole after two years and 30 days from his release on parole and deny the petition.

Facts and Proceedings

The underlying facts of defendant's commitment offenses are not pertinent to this proceeding.

On November 20, 2001, petitioner pleaded no contest to two counts of lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)) and one count of lewd and lascivious conduct with a child 14 or 15 years old by one who is at least 10 years older than the victim (§ 288, subd. (c)). On April 22, 2002, he was sentenced to state prison for a term of eight years and eight months.

Petitioner was released from prison on November 9, 2008, and placed on parole for a period of five years.

On December 17, 2010, more than two years and 30 days after his release on parole, petitioner filed a petition for writ of habeas corpus in the superior court challenging his continued retention on parole. Among other things, petitioner argued application to him of the amended version of section 3001, subdivision (a), violated ex post facto principles.

The superior court disagreed, concluding application of the amended statute was not a retroactive application and the change in eligibility for discharge from parole from two years to three was not an increase in punishment for the commitment offenses.

On May 10, 2011, petitioner filed a petition for writ of habeas corpus in this court. On June 24, 2011, we issued to Matthew Cate, Secretary of CDCR, an order to show cause why the relief requested should not be granted. CDCR filed a return to the petition.

Discussion

Preliminarily, we note that respondent advised the court of recent parole matters that have taken place since the matter came to the court on appeal. We have not considered those matters in reaching our decision here.

It is undisputed CDCR did not recommend that petitioner be retained on parole and the Board did not determine that petitioner be retained on parole within 30 days of his completion of two years of continuous parole. Petitioner contends he is therefore entitled to immediate discharge from parole. Resolution of this issue thus depends upon whether petitioner is subject to the version of section 3001, subdivision (a), in existence at the time of the commitment offenses or the version in existence at the time of his release on parole. Petitioner contends application of the latter version would violate ex post facto principles, because it is a retroactive application that effectively increases the punishment imposed on the original offenses.

"Both the United States Constitution (art. I, §§ 9 & 10) and the California Constitution (art. I, § 9) prohibit the passage of ex post facto laws. In Collins

v.

Youngblood [(1990)] 497 U.S. 37 [111 L.Ed.2d 30], the high court explained that an impermissible ex post facto law is one which '"makes more burdensome the punishment for the crime, after its commission."' [Citation.] 'Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. [Citations.] The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation. [Citations.] [¶] In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.' [Citation.]" (In re E.J. (2010) 47 Cal.4th 1258, 1279 (E.J.), italics omitted.) The California Supreme Court "has observed that there is no significant difference between the federal and state ex post facto clauses." (Ibid.)

"In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party's liability for, an event, transaction, or conduct that was completed before the law's effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute's effective date. [Citations.] A law is not retroactive 'merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.' [Citation.]" (People v. Grant (1999) 20 Cal.4th 150, 157.)

For example, in E.J., the question was whether a new law imposing a restriction on where sex offenders may reside was being applied retroactively to the petitioners, whose commitment offenses were committed before the law went into effect but who were released on parole after the law's effective date. CDCR sought to enforce the new law as a condition of parole, thereby subjecting the petitioners to revocation of parole for noncompliance. (E.J., supra, 47 Cal.4th at pp. 1263-1264.) The high court concluded there was no retrospective application, because the last act necessary to trigger application of the new law to the petitioners--moving into noncompliant housing--would occur after the law was enacted. (Id. at p. 1272.) According to the court: "Section 3003.5[, subdivision ](b) places restrictions on where a paroled sex offender subject to lifetime registration pursuant to section 290 may reside while on parole. For purposes of retroactivity analysis, the pivotal 'last act or event' [citation] that must occur before the mandatory residency restrictions come into play is the registered sex offender's securing of a residence upon his release from custody on parole. If that 'last act or event' occurred subsequent to the effective date of section 3003.5[, subdivision ](b), a conclusion that it was a violation of the registrant's parole does not constitute a 'retroactive' application of the statute." (Id. at p. 1274.)

Petitioner contends the present matter is distinguishable from E.J. in that application to him of the amended section 3001, subdivision (a), does not depend on any new conduct. Quite the contrary. According to petitioner, under the old law, he would have been eligible for early discharge from parole if he remained continuously on parole for two years, i.e., he did not commit any new misconduct that resulted in a revocation of parole. However, despite having done nothing new, his early discharge date was extended an extra year.

The People counter that application of the amended law does depend upon petitioner's conduct after the amendment's effective date. They argue: "Section 3001[, subdivision](a) does not simply provide for discharge consideration after a specified number of calendar years following release. [Citation.] If a parolee absconds from parole or has his parole revoked, he will not receive consideration for early discharge. [Citations.] The critical factor controlling section 3001[, subdivision](a)'s application is a parolee's actual behavior after his release. The operation of section 3001[, subdivision](a) therefore turns on events entirely apart from a parolee's crimes and conviction." In other words, according to the People, application of the amendment to petitioner, thereby delaying his eligibility for early discharge an extra year, is not retroactive because early discharge is based in part on the absence of any misconduct by petitioner for the relevant period.

We need not decide this issue. The People contend the amendment of section 3001, subdivision (a), extending the date when certain parolees may be eligible for early discharge from two years to three does not increase the punishment imposed on petitioner for the commitment offenses. According to the People, the punishment imposed upon petitioner included a period of parole of five years, and that did not change as a result of the amendment. Further, they argue, because petitioner's chance of receiving early discharge from parole at either the two-year or three-year mark is a matter of CDCR and Board discretion, the impact of the amendment on petitioner is too speculative to amount to an ex post facto violation.

In Cal. Dept. of Corrections v. Morales (1995) 514 U.S. 499 [131 L.Ed.2d 588] (Morales), Morales was convicted of a 1980 second-degree murder on a plea of no contest and received a sentence of 15 years to life. He had previously been convicted of a 1971 murder. Morales first became eligible for parole in 1990 but, at his first suitability hearing, parole was denied. Under the law in existence at the time of the commitment offense, Morales would have been entitled to subsequent parole suitability hearings on an annual basis. However, in 1981, the Legislature authorized the Board to defer subsequent parole suitability hearings for up to three years in the case of an inmate convicted of more than one offense involving the taking of a life where the Board finds "'it is not reasonable to expect that parole would be granted at a hearing during the following years.'" (Id. at p. 503 [131 L.Ed.2d at p. 593].) Pursuant to this amended law, the Board deferred Morales's next suitability hearing for two years. (Ibid.)

The United States Supreme Court concluded application of the new law to Morales did not violate ex post facto principles. In particular, the high court found the new law did not increase the punishment on Morales, explaining: "Both before and after the 1981 amendment, California punished the offense of second-degree murder with an indeterminate sentence of 'confinement in the state prison for a term of 15 years to life.' [Citation.] The amendment also left unchanged the substantive formula for securing any reductions to this sentencing range. . . . The amendment had no effect on the standards for fixing a prisoner's initial date of 'eligibility' for parole [citation], or for determining his 'suitability' for parole and setting his release date [citation]." (Morales, supra, 514 U.S. at p. 507 [131 L.Ed.2d at p. 595].)

On Morales's argument that the ex post facto clause forbids any legislative change that could conceivably affect a prisoner's punishment, the court explained that "what legislative adjustments 'will be held to be of sufficient moment to transgress the constitutional prohibition' must be a matter of 'degree.'" (Morales, supra, 514 U.S. at p. 509 [131 L.Ed.2d at p. 597].) The question is whether the amendment "produces a sufficient risk of increasing the measure of punishment attached to the covered crimes." (Ibid.) No single test controls. (Ibid.)

In Morales, the court noted the amendment applies only to a narrow class of prisoners who have committed more than one offense involving the taking of a life, applies only after the first suitability hearing in which parole is denied, permits the Board to tailor the frequency of subsequent hearings to the particular circumstances of the prisoner, thereby allowing greater delay for those less likely to receive parole in the future, and does not preclude a prisoner from seeking an expedited hearing under exceptional circumstances. (Morales, supra, 514 U.S. at pp. 510-513 [131 L.Ed.2d at pp. 597-599].) The court therefore concluded the amendment "creates only the most speculative and attenuated risk of increasing the measure of punishment attached to the covered crimes." (Id. at p. 514 [131 L.Ed.2d at p. 599].)

In Garner v. Jones (2000) 529 U.S. 244 [146 L.Ed.2d 236] (Garner), a Georgia inmate challenged legislation permitting the extension of intervals between parole consideration hearings for life prisoners from three years to eight. (Id. at pp. 246-247 [146 L.Ed.2d at p. 242].) Relying primarily on Morales and the broad discretion held by authorities in determining whether an inmate should be released on parole, the high court found no ex post facto violation. As in Morales, the court noted that the frequency of parole hearings is a matter of the Parole Board's discretion, with eight years being only the maximum, and the Parole Board retains the power to conduct expedited reviews where the circumstances warrant. (Id. at 254 [146 L.Ed.2d at pp. 246-247].)

In Garner, the high court explained the party challenging a change in law tied to the exercise of discretion must demonstrate a significant risk of increased punishment. According to the court: "When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule." (Garner, supra, 529 U.S. at p. 255 [146 L.Ed.2d at p. 247].) Without such evidence, the court explained, the inmate's ex post facto challenge "rests upon speculation." (Id. at p. 256 [146 L.Ed.2d at p. 248].)

For example, in Morales the evidence suggested just the opposite. Inmates subject to the legislative change at issue in Morales, those who have committed more than one offense involving the taking of a life, could be viewed as the worst of the worst. The evidence before the court was that, of all prisoners, 90 percent are found unsuitable for parole at the initial hearing and 85 percent are found unsuitable at the second and subsequent hearings. (Morales, supra, 514 U.S. at pp. 510-511 [131 L.Ed.2d at pp. 597-598].) It can reasonably be assumed the chance of those in the covered class receiving parole is even less.

In Morales, the high court suggested that adoption of a rule whereby any legislative change that could conceivably result in an increase in punishment violates ex post facto principles would require the courts to micromanage all changes in parole procedures, "including such innocuous adjustments as changes to the membership of the Board of Prison Terms, restrictions on the hours that prisoners may use the prison law library, reductions in the duration of parole hearings, restrictions on the time allotted for a convicted defendant's right of allocution before a sentencing judge, and page limitations on a defendant's objections to presentence reports or on documents seeking a pardon from the governor." (Morales, supra, 514 U.S. at p. 508 [131 L.Ed.2d at p. 596].) According to the court: "These and countless other changes might create some speculative, attenuated risk of affecting a prisoner's actual term of confinement by making it more difficult for him to make a persuasive case for early release, but that fact alone cannot end the matter for ex post facto purposes." (Id. at pp. 508-509 [131 L.Ed.2d at p. 596].) The court specifically rejected the dissent's attempt to draw a bright line between the foregoing types of legislative changes and one in which the prisoner is denied a parole hearing altogether. All such changes must be viewed under the same prism of whether they pose a sufficient risk of increasing punishment. (Id. at p. 509, fn. 4 [131 L.Ed.2d at p. 596].)

Relying to a large extent on the foregoing, the California Supreme Court, in In re Rosenkrantz (2002) 29 Cal.4th 616, concluded a legislative change imposing an additional level of review on parole decisions, whereby the Governor could overrule a Board decision to grant parole, did not violate ex post facto principles. (Id. at pp. 645-652.) The court explained the legislative change at issue merely instituted "a new level of review of parole decisions (and a resulting change in the identity of the entity within the executive branch that makes the ultimate decision on parole suitability)." (Id. at p. 650.) According to the court, "this type of change in procedure is not the type of change addressed by the ex post facto clause." (Id. at p. 651, italics omitted.)

The present matter, of course, does not involve merely a change in the identity of the party making the ultimate parole eligibility or discharge decision or other such procedural matters. The present matter involves a delay in the initial parole discharge decision. As a result of the legislative change, covered parolees must wait an extra year before they are first considered for early discharge. Nevertheless, as the federal high court explained in Morales (Morales, supra, at p. 509, fn. 4 [131 L.Ed.2d at p. 597]), this does not change the nature of the constitutional analysis.

In In re Carabes (1983) 144 Cal.App.3d 927, the Court of Appeal noted that, "[t]hough the purpose of parole is to provide a testing period for reintegration of the prisoner into society, the consequences of being on parole are penal. A parolee is, in a real sense, an 'outside inmate.' Parole means a significant array of impositions and liberty curtailment, such as warrantless search and seizure and severe restrictions on travel and other conduct affecting practically every aspect of the parolee's life. Further, 'prisoners on parole remain under legal custody and are subject to be returned to prison at any time.'" (Id. at pp. 931-932.)

But while the extension of a period of parole may be an increase in punishment for purposes of ex post facto analysis, the question remains whether the legislative change at issue here has created a significant risk of an increase in petitioner's parole period. (Garner, supra, 529 U.S. at p. 255 [146 L.Ed.2d at p. 247].) To the extent petitioner would have been discharged from parole under section 3001, subdivision (a), the one-year delay in such consideration would result in a longer period of parole. However, even one on continuous parole for the requisite period is not automatically entitled to discharge. That determination is subject to CDCR recommending that the parolee be retained on parole and the Board finding good cause for such retention. Thus, not only must the parolee avoid parole violations but the Board must find the parolee suitable for discharge.

In this instance, as in Garner, petitioner has provided no "evidence drawn from the [amended section 3001, subdivision (a)'s] practical implementation by the [Board], that its retroactive application will result in a longer period of [parole] than under the earlier rule." (Garner, supra, 529 U.S. at p. 255 [146 L.Ed.2d at p. 247].) We have no information, for example, as to the likelihood of a parolee subject to former section 3001, subdivision (a), receiving early discharge two years into a parole period of three to five years. Hence, petitioner has failed to prove there is a significant risk the amendment will result in an increase in his punishment. His assertions to the contrary "rests upon speculation." (Garner, supra, 529 U.S. at p. 256 [146 L.Ed.2d at p. 248].)

Disposition

The petition for writ of habeas corpus is denied. The order to show cause, having served its purpose, is discharged.

We concur: BLEASE , Acting P. J. BUTZ , J.

20120109

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