IN RE: Charles David ALLISON

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Court of Appeal, Second District, Division 6, California.

IN RE: Charles David ALLISON, on Habeas Corpus.

No. B026511.

Decided: February 22, 1988

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Carol Slater Frederick, Supervising Deputy Atty. Gen. and Lela J. Huckabee, Deputy Atty. Gen., for appellant. Glen Mowrer, Public Defender and Michael C. McMahon, Asst. Public Defender, for petitioner and respondent.

The Parole Board failed to discharge petitioner Charles David Allison from parole or to determine that he should be retained on parole within 30 days and one year after he should have been released from prison on parole.   Does that mean that Allison is therefore automatically discharged from parole?   Yes, according to section 3001, subdivision (a) of the Penal Code.

California Board of Prison Terms (People) appeals from an order of the superior court granting a petition for writ of habeas corpus by Allison and ordering his release from parole.   We affirm the order of the trial court and disagree with the holding in In re Welch (1987) 190 Cal.App.3d 407, 235 Cal.Rptr. 470, petition for review denied July 1, 1987.

On February 23, 1983, Allison was sentenced to a prison term of five years and eight months.   This sentence was later reduced to four years and four months.   Allison was released from prison on parole on approximately July 23, 1985.   He was given credit for 224 days spent in custody beyond the date he should have been released, December 11, 1984.   He was placed on parole for three years, but received a credit of 224 days.   His release date from parole was set for December 11, 1987.1  Allison's arrest in July of 1986 led to his revocation of parole on August 14, 1986.

In his petition for writ of habeas corpus, Allison claimed his parole had automatically terminated in January of 1986.   He argues that under Penal Code section 3001, subdivision (a), no parole review was conducted within one year and 30 days after December 11, 1984, the date on which he should have been released from confinement.

The People contend that absent a discharge from parole by the Board, the parole period is only terminated by successful completion of parole for the three-year period.   In any event, the People urge that the time for parole review is properly measured from the date of Allison's actual release from prison rather than the date he should have been released.   The trial court correctly found that Allison's parole period expired in January of 1986, one year and 30 days after the date he should have been released from prison.   Therefore, he was entitled to discharge from parole.

DISCUSSION

Penal Code section 3000, subdivision (a) provides that certain state prisoners at designated times shall be released on parole for a period not exceeding three years.   Allison falls within the categories mentioned in section 3000.  Penal Code section 3001, subdivision (a) provides in pertinent part that when a person, such as Allison, who “has been released on parole from the state prison, and has been on parole continuously for one year since release from confinement, the board shall, within 30 days, discharge such person from parole, unless the board, for good cause, determines that such person will be retained on parole.”

 The words of the statute are clear, direct, and unambiguous.   If the Board does not act within the required time, it must discharge a person from parole.   If the Legislature had a contrary intention, it would have said so.   We find nothing in the legislative history to indicate it did.   If, for example, the statute said “a parolee shall continue on parole unless the Board discharges such person from parole,” then the People's argument would be valid.

Understandably, the People rely on In re Welch, supra, 190 Cal.App.3d 407, 235 Cal.Rptr. 470, which they point out is similar to the instant case.   It is, except now there is a major distinction;  our holding is different.   We do not wish to burden our Supreme Court, nor do we wish our views scattered to the winds of oblivion through depublication.   Nevertheless, the unequivocal express language of section 3001 compels us to differ with our colleagues in Welch.

Welch holds that section 3001 does not automatically entitle a parolee to discharge from parole after one year.   The Welch court stated it did not “interpret section 3001 as providing for discharge from parole where the board has not acted in a timely manner.   Rather, a parolee's parole is terminated only upon successful completion of his or her parole period or early discharge by the board.”  (In re Welch, supra, at p. 411, 235 Cal.Rptr. 470.)   This holding, in our view, is inconsistent with section 3001.

The People argue here that the Board did review Allison's case within 30 days after he had been on parole continuously for one year since release from confinement, albeit Allison's release should have been earlier.   The People suggest it would defeat the purpose of parole if, as in this case, the review must take place within only 141 days of Allison's release from prison.

 We recognize, as did the Welch court, that the Legislature has stated that parole “ ‘is critical to successful reintegration of the offender into society and to positive citizenship.’  (Pen.Code, § 3000.)”  (In re Welch, supra, 190 Cal.App.3d at p. 412, 235 Cal.Rptr. 470.)   This laudable goal is not undermined by a review of Allison's parole approximately four and a half months after his release from prison.   Such a relatively short period of parole before review should occur only in the occasional case, where, as here, a defendant is improperly kept in prison beyond his release date.

In re Kemper (1980) 112 Cal.App.3d 434, 169 Cal.Rptr. 513 also involves similar facts to those in Welch and the instant case.   Kemper's parole was suspended several months after he had been released from prison.   Because of a sentence modification he had been released on parole at a date later than he should have been released.   The Kemper court stated that it would be unjust not to have Kemper's excess prison term credited against his parole.  “His ‘excess' prison time was an accidental injustice, and to say that it should not count in his favor as nonsuspended parole time seems unreasonably harsh․  [¶] Accordingly, the date on which Kemper would have been released on parole had he received ab initio the sentence ultimately deemed just, will serve as the starting point for our calculation of his parole period.”  (Id. at p. 438, 169 Cal.Rptr. 513.)

The Welch court acknowledged that under Kemper, when the suspension order occurred more than one year after the date petitioner should have been released, parole should be deemed to begin running from the date petitioner should have been released.  (In re Welch, supra, 190 Cal.App.3d at p. 409, 235 Cal.Rptr. 470.)   The Welch court, however, found Kemper to be distinguishable because at the time of the Kemper case, Penal Code section 3000, subdivision (a) provided for a one-year period of parole.   When the Board revoked parole in Kemper, it was later than one year.   Therefore, the Board had lost jurisdiction to act.

This distinction makes it no more unjust in Kemper than it is here to allow the Parole Board to conduct hearings a year and 30 days from actual release from custody.   But for the fortuitous circumstance that Allison was wrongfully held in custody beyond his parole date, he would have been entitled to a discharge from parole in January of 1986.

The February 20, 1987, order granting the petition for writ of habeas corpus is affirmed.

FOOTNOTES

1.   Allison contends for the first time on appeal that the record does not support a finding that he was placed on parole for three years.   The documents submitted to the trial court in support of the People's return to the petition showed he was in fact placed on three years parole, minus the 224 days of credit.   No factual or evidentiary challenge was made to these documents in the trial court.   Moreover, Allison alleged in his verified petition for the writ, which he used as a traverse to the return, that he was placed on three years parole.   Thus, it must be deemed on appeal that his term of parole was set at three years.  (In re Lewallen (1979) 23 Cal.3d 274, 277–278, 152 Cal.Rptr. 528, 590 P.2d 383;  In re Saunders (1970) 2 Cal.3d 1033, 1047–1048, 88 Cal.Rptr. 633, 472 P.2d 921.)

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.