IN RE: Maurice LeDAY (1984)

As applied to a parolee whose initial imprisonment was based on a crime committed before the effective date of subdivision (c) of Penal Code section 3057 (which authorizes extensions of parole violators' recommitment terms for new misconduct), is subdivision (c) an unconstitutional ex post facto provision?   We conclude that it is.

Until January 1, 1984, subdivision (a) of section 3057 provided without additional qualification that “[c]onfinement pursuant to a revocation of parole in the absence of a new conviction and commitment to prison under other provisions of law, shall not exceed twelve months.”   Effective on that date subdivision (c) was added to section 3057, and subdivision (a) was amended to add the words “except as provided in subdivision (c).”  (Stats.1983, ch. 757, § 2.)   Subdivision (c) provides, in pertinent part:  “Notwithstanding the limitation of subdivision (a) upon confinement pursuant to a parole revocation, the board may extend the confinement pursuant to parole revocation for a maximum of an additional 12 months for subsequent acts of misconduct committed by the parolee while confined pursuant to that parole revocation.”

 Maurice LeDay was sentenced to prison in October 1981, released on parole in April 1983, and recommitted to prison in July 1983 for parole violation with a release date of June 17, 1984.   In April 1984 LeDay's release date was postponed to August 1984 upon a finding that he had committed an act of misconduct in February 1984.   He filed a petition for habeas corpus in the Supreme Court, contending that as applied to him subdivision (c) is an unconstitutional ex post facto law.   The Supreme Court issued an order to show cause returnable here.   LeDay was released from prison in July, while this petition was pending.   Because we regard the ex post facto issue as one of broad public interest that is likely to recur in other contexts, we proceed to the merits notwithstanding the apparent mootness of LeDay's application.  (In re William M. (1970) 3 Cal.3d 16, 23–25, 89 Cal.Rptr. 33, 473 P.2d 737.)

“The ex post facto prohibition forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed;  or imposes additional punishment to that then prescribed.’  [Citations.]  Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.  [Citations.]  The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation.  [Citations.]  [¶] In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto:  it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.  [Citations.]”  (Weaver v. Graham (1980) 450 U.S. 24, 28–29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, fns. omitted.)

LeDay asserts that both elements are present here.

Unquestionably the new provisions embodied in subdivision (c), permitting extension of a parolee's recommitment term for misconduct committed during that term, disadvantaged LeDay in the requisite sense.

The closer question is whether, as applied to LeDay, subdivision (c) was retrospective.   The misconduct for which LeDay's term was extended occurred after the effective date of the new subdivision.   The People argue that the fair-warning purpose of the ex post facto clauses was served in LeDay's case:  “Petitioner had fair notice as of [January 1, 1984] that future acts of misconduct could result in an extension of his terms of confinement for his parole violations․  [P]etitioner, not the Legislature or the Board, was the master of his own destiny.”   LeDay argues that the relevant inquiry is whether (in the words of the U.S. Supreme Court) “the provision attaches legal consequences to a crime committed before the law took effect” (Weaver v. Graham, supra, 450 U.S. at p. 31, 101 S.Ct. at p. 965) and that for this purpose the “crime” is not his new misconduct but rather the crime for which he was initially committed to prison, long before January 1, 1984.

 We agree with LeDay.   The provisions of section 3057, regulating the length of time for which a parolee may be recommitted for violation of his parole, patently define “a ‘legal consequence’ which ‘attaches' to the crime for which the prisoner is incarcerated․”  (In re Paez (1983) 148 Cal.App.3d 919, 922, 196 Cal.Rptr. 401;  cf. Greenfield v. Scafati (D.Mass.1967) 277 F.Supp. 644, 645–646, summarily aff'd, (1968) 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250, cited with approval in Weaver v. Graham, supra, 450 U.S. at p. 32, 101 S.Ct. at p. 966.)   Neither the fact that subdivision (c) “alters punitive conditions outside the sentence” (Weaver v. Graham, 450 U.S. at p. 32, 101 S.Ct. at p. 966) nor the fact that its application in LeDay's case was triggered by misconduct which occurred after its effective date (In re Paez, supra, 148 Cal.App.3d at pp. 922–924, 196 Cal.Rptr. 401) is relevant to the ex post facto inquiry in these circumstances.

In the circumstances of record LeDay was entitled to be released from prison on parole on June 17, 1984.   The time he spent in prison after that date, upon the purported extension of his recommitment term, may not be applied to increase his period of parole.

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.