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In Re Mark anderson

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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