People v. James

Opinion

EVANS, Acting P. J. In this appeal from orders granting defendants’ petitions for writs of habeas corpus, the People challenge the superior court’s determination that defendants, both convicted murderers sentenced to life imprisonment under the Indeterminate Sentence Law (ISL),1 were entitled to be released on parole within one year of having been found parole suitable. We reverse.

[797]Ex post facto principles dictate that an inmate who has been sentenced to life imprisonment under the ISL, and who has been found suitable for release on parole, shall be granted the earlier of the parole release dates calculated in accordance with the ISL and the Uniform Determinate Sentencing Act of 1976 (DSL),2 which is the current law. (In re Stanworth (1982) 33 Cal.3d 176 [187 Cal.Rptr. 783, 654 P.2d 1311].)

The Board of Prison Terms (Board) found defendants Donald H. James and Michael Verbos suitable for parole on April 28, 1981, and October 16, 1980, respectively. After each was afforded a Stanworth parole eligibility hearing, the Board granted defendant James a parole release date of October 15, 1987, and defendant Verbos a parole release date of August 9, 1989. Thereafter, each defendant petitioned the superior court for a writ of habeas corpus alleging he was entitled to be released on parole within one year of having been found parole suitable asserting “that was the law and practice at the time” he committed the offense for which he was sentenced. The superior court granted the petitions. The People appeal pursuant to Penal Code section 1506.

From the fact that it granted defendants’ petitions for release, we infer the superior court found the law and practice at the time their crimes were committed required that a life prisoner be released on parole within one year of a determination the prisoner was parole suitable. The record, however, fails to disclose any evidence or legal authority that would support such a finding.

Defendants assert the superior court took judicial notice of its decisions in In re Davis and In re Gadbury,3 habeas corpus proceeding in which the superior court granted writs to two life prisoners who had raised the claim defendants raise in this case. Defendants’ assertion is not evidence, nor is the assertion supported by any other evidence in the record.4

Defendants and the People refer in their briefs to a stipulation made between the parties in the Davis and Gadbury proceedings. Neither defendants nor the People explain why that stipulation should bind the parties in this case or otherwise constitute evidence. The record is similarly silent. The stipulation, which appears in the record as an attachment to each defendant’s petition and traverse, states that “[u]nder the Indeterminate Sentence Law most inmates convicted and sentenced for first degree murder were released