IN RE: Kenneth NESPER

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Court of Appeal, First District, Division 4, California.

IN RE: Kenneth NESPER, on Habeas Corpus.

No. A046200.

Decided: December 20, 1989

Robert V. Vallandigham, Jr., San Rafael, for petitioner. John K. Van De Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Paul D. Gifford, Karl S. Mayer and Susan J. King, Deputy Attys. Gen., San Francisco, for respondents.

Petitioner claims that he was discharged from parole by operation of law pursuant to Penal Code 1 section 3001, subdivision (a), when the Board of Prison Terms (BPT) failed to act to retain him on parole.   During the relevant time period, section 3001, subdivision (a), provided:  “Notwithstanding any other provision of law, when any person referred to in subdivision (a) of Section 3000 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 board shall make a written record of its determination and transmit a copy thereof to the parolee.”  (Stats.1978, ch. 582, p. 2004, § 2.) 2

FACTS

The record before this court shows that on October 29, 1982, petitioner was sentenced to a term of 8 years in state prison.   He was paroled on December 6, 1986.   On September 21, 1988, petitioner's parole was revoked for a period of twelve months.   He filed a petition for habeas corpus in the superior court on October 3, 1988, contending that the parole revocation was invalid because he was no longer on parole after December 6, 1987, due to the failure of the BPT to extend his parole as required by section 3001 subdivision (a).   The superior court denied the petition citing In re Welch (1987) 190 Cal.App.3d 407, 235 Cal.Rptr. 470, and petitioner filed for habeas relief in this court.   In an initial brief in opposition to the petition, the Attorney General took the position that, although petitioner's parole agent had recommended that the BPT retain petitioner on parole, no documents exist showing that the BPT acted.   We issued an order to show cause.

 Respondent in the return to the order to show cause for the first time alleges that the BPT did act to retain petitioner on parole.   Respondent supports this unsworn allegation with an unauthenticated and uncertified copy of a “Cumulative Case Summary/Chronological History.”   One line of this summary is dated December 3, 1987, and reads:  “Retain on Par. BPT 2535(d) 1, 5.” 3  We do not consider that respondent has met its burden of showing that the BPT acted to retain petitioner on parole.   The entry obviously does not expressly state that the BPT acted.   Without a declaration of one with actual knowledge of whether the BPT acted, the return is insufficient to support the allegation that the BPT acted.   Furthermore, we do not believe the return makes a showing sufficient to require a hearing to resolve a dispute in the facts.   The return does not dispute petitioner's allegation that he was never informed of action on the part of the BPT.   The Parole Operations Manual (POM) in setting forth the procedures for discharge of parole, requires that the parolee be provided with a “Decision Form” when the BPT acts and a “Parolee Appeal Form” if a decision is made to “retain on parole supervision.”  (POM, § 1703, p. 161.)   Evidence of whether the BPT acted, if it exists, is in the control of the Department of Corrections.   The failure of the return to support the unsworn allegation that the BPT acted does not meet the burden imposed by the order to show cause.

 We turn, therefore, to the question of whether petitioner's parole terminated when the BPT did not act to retain him on parole as required by section 3001 subdivision (a).   The Attorney General agrees that under the current wording of section 3001, subdivision (a), the BPT is required to take affirmative action to retain a parolee on parole after completion of a one-year period on parole.4  The current wording provides that a person shall be discharged from parole unless the BPT “acts by determining for good cause, that the person will be retained on parole” rather than that a person shall be discharged unless the BPT “determines” that such person will be retained on parole.   We do not regard the change in wording as significant.   Nor, apparently, did the Legislature.   The Legislative Counsel's Digest explains that the amendment would provide that a person imprisoned for committing a violent felony would have to be on parole continuously for two years to be eligible for discharge of parole.   Only a person not convicted of a violent felony would be discharged under section 3001 after one year.   In section 2, the Legislature provided that the act should go into immediate effect.  “The facts constituting the necessity are:  It is essential that immediate action be taken to ensure that violent offenders are retained on parole.” 5  The legislative counsel mentions no other change made by the amendment.

We also regard it as significant that the Department of Corrections itself has interpreted the section as discharging parole automatically unless the BPT acts.   In its Parole Operations Manual (POM) the Department of Corrections has instructed its parole agents on the procedure for discharging or retaining a person on parole.   Even prior to the amendment of section 3001, the employees of the CDC were instructed that the failure of the BPT to act to retain a parolee on parole before the expiration of the time periods provided in the statute automatically resulted in the discharge of the parolee by operation of law.  (POM, § 1703, pp. 159–160.)   The Department of Corrections has no explanation for its present inconsistent interpretation of the statute.

To support its construction of the statute, the Attorney General relies solely on the case of In re Welch, supra, 190 Cal.App.3d 407, 235 Cal.Rptr. 470 and the later case of People v. Lara (1988) 206 Cal.App.3d 1297, 254 Cal.Rptr. 360.   In both cases, the courts held that parole was not automatically terminated when the BPT failed to retain the parolee on parole within the time limit of section 3001.   These cases are distinguishable on their facts from the case at hand.   In both cases, the BPT had no opportunity to act within the statutory time limit of section 3001 because the defendant was not on actual parole during the relevant period but on constructive parole due to a recalculation of the parole release date.   Welch was in prison after conviction in three separate cases when his conviction in one case was reversed.   He was released on January 31, 1985, and parole was revoked on August 9, 1985.   However, by crediting the time he spent in prison on the reversed conviction to his parole, a release date of December 1983 was retroactively calculated.   The reviewing court rejected Welch's argument that his parole should be considered terminated one year after this fictitious release date since the BPT did not act to retain Welch on parole by December 1984.  Lara also involved a recalculation of a parole release date.   Lara was actually released on parole on February 19, 1987.   However, he should have been released on parole on March 27, 1986, and the parole period should be calculated from that date.   The reviewing court refused to accept this fictitious release date to determine when the BPT was required to act to retain Lara on parole.

The Lara court explained:  “It is clear from a fair reading of section 3001, subdivision (a), that that statutory provision does not contemplate the automatic termination of parole terms, under any circumstances.   Rather, section 3001, subdivision (a), places a mandatory duty on the Board of Prison Terms to affirmatively act either to continue or to terminate the parole status of parolees who have been actually free of confinement for a continuance year, irrespective of when such freedom from imprisonment should have occurred.”  (206 Cal.App.3d at p. 1302, 254 Cal.Rptr. 360, original emphasis.)

We do not disagree with the above interpretation of section 3001, subdivision (a).   We think it an unreasonable interpretation of the section to impose a duty on the BPT to retain a prisoner on parole when that prisoner is not actually on parole but still in prison.   A statutory construction that leads to absurd consequences should be avoided.  (People v. Colver (1980) 107 Cal.App.3d 277, 285, 165 Cal.Rptr. 614.)

Petitioner in the instant case, however, was actually free of confinement for a continuance year.   A common sense reading of section 3001, subdivision (a), together with the interpretation of that section by respondent itself in its parole procedures, leads to the conclusion that petitioner's parole terminated by January 7, 1988, due to the inaction of the Board.

 Respondent contends that petitioner is not entitled to relief on this petition because he failed to exhaust his administrative remedies by challenging the failure of the BPT to discharge him from parole once the year had passed.   Respondent points to the fact that petitioner obviously knew that he was still on parole since he continued to report to his parole office.   Respondent's contention is specious in view of the fact that petitioner was not notified of the action of the BPT as required by the POM.   In the POM, the parole agent is directed to provide the parolee with a copy of the decision form and an appeal form if the decision is to retain on parole.   By this means, the parolee is informed both of the status of his parole and his right to a review of a decision to retain him on parole.   Since this was not done in the instant case, petitioner's failure to utilize an administrative remedy is excused.

In sum, we conclude that petitioner's parole terminated when the BPT did not act to retain petitioner on parole.   Therefore, the BPT did not have jurisdiction to revoke parole on September 21, 1988.

The order of that date revoking parole is hereby annulled.

FOOTNOTES

FN1. Unless otherwise indicated, all further statutory references are to the Penal Code..  FN1. Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   Respondent does not dispute that petitioner was a person within the class of inmates defined in section 3000, subdivision (a), a section providing for a parole period not exceeding three years.

3.   This same exhibit was attached to the Attorney General's initial opposition at which time the Attorney General apparently did not regard it as a document showing action on the part of the BPT.

4.   In 1988 Penal Code section 3001 was amended by the Legislature.  (Stats.1988, ch. 1357, § 1.)   Subdivision (a) now reads:  “Notwithstanding any other provision of law, when any person referred to in subdivision (a) of Section 3000 who was not imprisoned for committing a violent felony, as defined in subdivision (c) of Section 667.5, has been released on parole from the state prison, and has been on parole continuously for one year since release from confinement, within 30 days, that person shall be discharged from parole, unless the Department of Corrections recommends to the Board of Prison Terms that the person be retained on parole and the Board of Prison Terms acts by determining, for good cause, that the person will be retained on parole.   Notwithstanding any other provision of law, when any person referred to in subdivision (a) of Section 3000 who was imprisoned for committing a violent felony, as defined in subdivision (c) of Section 667.5, has been released on parole from the state prison, and has been on parole continuously for two years since release from confinement, the board shall, within 30 days, discharge that person from parole, unless the board for good cause, determines that the person will be retained on parole.   The board shall make a written record of its determination and transmit a copy thereof to the parolee.”

5.   The amendment does not apply to petitioner since the Legislature also provided that the amendments would be applied prospectively only.   (§ 3001, subd. (d).)

PERLEY, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.