In re Holmes

Opinion

WIENER, Acting P. J. The Board of Prison Terms (Board) appeals the order partially granting Wendell Holmes’s petition for habeas corpus. Although we dismiss the appeal as moot, we discuss part of the order requiring the Board to determine why Holmes should not be released within one year of his parole suitability finding or to give specific reasons why his release date should be beyond that one-year time.1 We explain why we have concluded the court incorrectly applied ex post facto principles and accordingly erred in issuing the order.

I

Holmes was convicted in 1975 of first degree murder and sentenced in that year to life imprisonment. In 1983, the Board held two hearings [485]concerning Holmes’s suitability for release, one under the determinate sentencing law (DSL) and one under the indeterminate sentencing law (ISL) parole board rules (PRB) promulgated in 1976 as required by In re Stan-worth (1982) 33 Cal.3d 176 [187 Cal.Rptr. 783, 654 P.2d 1311]. Both panels found Holmes suitable for parole. The DSL panel set a parole date of June 20, 1992; the ISL panel set a parole date of April 20, 1990. Both panels used regulations promulgated after the date of Holmes’s crime. Contending the use of such regulations was unlawful, Holmes sought habeas corpus relief in the superior court in 1988.

After appointing counsel and holding extensive hearings, the court found uncontradicted evidence established the “Parole Board had a rule by practice that the vast majority of first degree murder life prisoners were paroled within one year of being found parole suitable at the time Holmes’ crime was committed.” Based on this finding and the fact that all such prisoners had been released within 34 months of being found parole suitable, the court ruled Holmes was entitled to be released unless the Board could give specific reasons why his release date should be beyond that one-year time. The Board has appealed this order. Pending the appeal, we are told the court-ordered hearings have been held and Holmes has now been released.

Discussion

The court made its ruling on the assumption that ex post facto principles required the Board to treat Holmes in the same manner as it had treated other first degree murderers who were serving a life sentence at about the time Holmes committed his crime. The court’s premise is valid, however, only if the retrospective application of the regulations here disadvantaged Holmes. (In re Seabock (1983) 140 Cal.App.3d 29 [189 Cal.Rptr. 310].) Not only must the application of the regulations be retrospective, i.e., apply to events occurring before its enactment, but they must disadvantage the offender affected by them. (Weaver v. Graham (1981) 450 U.S. 24, 29 [67 L.Ed.2d 17, 23, 101 S.Ct. 960].) Thus the crucial question before the trial court was not merely whether the later parole regulations were applied retrospectively, but whether their application “disadvantaged” Holmes.2