In Re Roa

California Court of Appeal Sep 5, 1991 No. B052861Published

Before: Gilbert

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Holding. The court held that a parolee is not automatically discharged from parole due to a failure to receive written notice of a parole extension within the statutory 30-day period, provided the Board of Prison Terms acted timely and the parolee's due process rights to administrative appeal remain intact.

Issues

Whether a failure to provide written notice of a parole extension within the statutory period requires automatic discharge from parole.
Whether the Board of Prison Terms loses jurisdiction to revoke parole if notice of an extension is not provided within the 13-month period.

Disposition. reversed

Quotations verified verbatim against the opinion

“Roa was not automatically discharged from parole because of the failure to provide written notice within the same 30-day period in which the Board of Prison Terms must act to retain him on parole.”

“The Ruzicka court held that a failure to comply with the requirement of notice does not necessarily result in discharge from parole.”

“Whether Roa should have been notified of his parole extension in writing prior to the expiration of the 13-month period, or a reasonable time thereafter, any failure to notify him in writing of the Board’s decision was harmless beyond a reasonable doubt.”

Opinion

GILBERT, J.

The People appeal from the order granting respondent Peter Coll Roa’s petition for writ of habeas corpus after the trial court found that extension of respondent’s parole was unlawful.

The People contend, among other things, that the superior court misconstrued Penal Code section 3001, subdivision (a). Roa was not automatically discharged from parole because of the failure to provide written notice within the same 30-day period in which the Board of Prison Terms must act to retain him on parole. We agree and reverse.

On February 20, 1989, Roa was paroled from prison after serving a term for attempted child molestation (Pen. Code, §§ 664/288, subd. (a)). His controlling discharge date was February 20, 1992.

On March 5, 1990, Roa’s parole officer left written instructions at Roa’s home address for him to report the following day. Roa failed to do so. On March 9, his parole officer wrote in her discharge review that Roa had not

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attended the required parole outpatient clinic on two occasions, that a physician who said Roa’s participation was minimal did not recommend discharge, that Roa had displayed “a passive-avoidant stance” toward required treatment, and that discharge appeared to be inappropriate because of the seriousness of the commitment offense.

She recommended that Roa be retained on parole for an additional year. On March 14, 1990, the Board of Prison Terms issued a written decision which extended Roa’s parole for one year. On March 19, the parole officer again left written instructions at Roa’s home address directing him to report the following day, but Roa again failed to appear.

At approximately 1:40 a.m. on March 21, 1990, Roa was arrested for driving under the influence of alcohol, a violation of his parole condition that he abstain from alcohol. He was released on his own recognizance. Later that day, Roa reported this arrest to the parole office and was arrested for the parole violation and a parole hold was placed on him. It is unclear whether Roa was formally notified of his parole extension at this time.

In Re Roa

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GILBERT, J.

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