In re Brown

Opinion

BENKE, Acting P. J. In 1986, petitioner Rodney Brown was sentenced to a prison term of 15 years to life following a guilty plea to one count of second degree murder. In September 1999 the Board of Prison Terms (Board) determined petitioner was not suitable for parole. The Board also determined it was not reasonable to expect petitioner would be suitable for parole release in the next five years. Petitioner seeks a writ of habeas corpus setting aside the Board’s decision. In doing so, he does not contest the sufficiency of the evidence to support the Board’s denial of parole. Rather, he argues Penal Code section 3041.5, subdivision (b)(2)(B),1 which allows [158]the deferral of parole consideration hearings for five years upon a murder conviction, does not apply to him.

I

The History of Section 3041.5

Prior to 1990, section 3041.5, subdivision (b)(2), provided that where, following a parole hearing, a prisoner had been denied a parole date, the Board was required to send the prisoner a written statement setting forth the reasons for denial and suggesting activities which might benefit him while in prison. Thereafter, the Board was required to hear that prisoner’s case annually, except that the Board was permitted to schedule the next hearing “no later than (A) two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year and states the bases for the finding or, (B) three years after any hearing at which parole is denied if the prisoner has been convicted, in the same or different proceedings, of more than one offense which involves the taking of a life, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding.” (Stats. 1986, ch. 248, § 166, pp. 1267-1268.)

In 1990 the Legislature amended section 3041.5. The Legislature left intact the annual parole review procedure in subdivision (b)(2) and its two-year exception in subdivision (b)(2)(A). It also left intact the three-year exception of subdivision (b)(2)(B) for prisoners who had been convicted of more than one criminal homicide. It added subdivision (b)(2)(C), which provided that the Board could defer a parole hearing for up to five years if the prisoner had “been convicted, in the same or different proceedings, of more than two murders.” (Stats. 1990, ch. 1053, § 1, pp. 4380-4381.) As part of the same session, the Legislature created a window period, which provided: “The amendments to Section 3041.5 of the Penal Code made by this act shall be applicable only to offenses committed before July 1, 1977, or on or after January 1, 1991.” (Stats. 1990, ch. 1053, § 2, p. 4381.) The window period made in 1990 was not codified.