In Re Thomson

California Court of Appeal Apr 22, 1980 No. Crim. 11654Published

Before: Brown (Gerald)

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Holding. The 1979 amendment to Penal Code section 3000, subdivision (b), which extended the maximum parole term from one to three years, cannot be retroactively applied to prisoners whose determinate terms were calculated prior to the amendment's effective date. Such application constitutes an invalid ex post facto law and a violation of equal protection.

Issues

Does the 1979 amendment to Penal Code section 3000, subdivision (b) apply retroactively to prisoners whose release dates were fixed before the amendment's enactment?
Does the retroactive application of the parole extension amendment violate the ex post facto clauses of the federal and California Constitutions?
Does the retroactive application of the parole extension amendment violate the equal protection of the laws?

Disposition. remanded

Quotations verified verbatim against the opinion

“We find, in agreement with the Harper court, the last sentence of section 3000, subdivision (b), is not a clear expression of retroactivity, therefore the amendment cannot be retroactively applied.”

“It is the purest sophistry to argue there is no increase in punishment. A determinate term followed by a precise time for parole has been lengthened. That is ex post facto.”

“We conclude the amendment may not be retroactively applied.”

Opinion

BROWN (Gerald), P. J.

Petitioner Thomson, currently released on parole, seeks a writ of habeas corpus to prevent the Board of Prison Terms (BPT) from extending his maximum parole term from one to three years. BPT bases its extension on an amendment of Penal Code section 3000, subdivision (b),

effective January 1, 1979, which increases the applicable parole term (if there is no parole violation) from one year to three years. (See discussion of amendment in

In re Bray

(1979) 97 Cal.App.3d 506, 509 [158 Cal.Rptr. 745].)

The superior court initially committed Thomson to prison on June 14, 1978, after his conviction of multiple violations of Penal Code section 476a, subdivision (a) [insufficient funds]. He committed some of the offenses before the effective date of the determinate sentencing law (DSL) and others after that date. As mandated in Penal Code section

[953]

1170.2, subdivision (a), BPT recalculated Thomson’s term from an indeterminate to a determinate term, on July 25, 1978. On that date the original version of Penal Code section 3000, subdivision (b), was still in effect and provided a one-year maximum parole term after discharge for persons in Thomson’s position (not serving life sentences). After BPT calculated Thomson’s term in September 1978, the Legislature enacted the amendment, lengthening the parole maximum applicable to Thomson to three years. The effective date of the amendment, January 1, 1979, was before Thomson’s release date. Thomson was released on parole October 18, 1979. BPT then told him he would be on parole for three years. He challenged the application to him of the parole extension amendment, both by an administrative proceeding before BPT and also by a habeas corpus proceeding in superior court, in which, after issuance of an order to show cause, the court denied the writ.

Does the parole extension amendment in Penal Code section 3000, subdivision (b), apply to persons like Thomson whose terms and release dates were fixed before enactment of the amendment, but who were not actually released on parole before the effective date of the legislation (Jan. 1, 1979)? Other cases have already determined the legislation does not apply, or may not constitutionally be applied, to persons released on parole before January 1, 1979.

In Re Thomson

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