IN RE: Lawrence A. JACKSON (1984)

Does application to respondent of the two-year delay provision of Penal Code section 3041.5 regarding parole suitability hearings violate the ex post facto clauses of the United States and California Constitutions?   We hold that it does and affirm the superior court's ruling.

The People of the State of California appeal from an order granting habeas corpus relief to respondent Lawrence A. Jackson which requires that the Board of Prison Terms (BPT) provide respondent annual parole suitability hearings and from an order denying application for reconsideration.

On or about September 16, 1961, respondent committed first degree murder and was sentenced to “life” imprisonment under the Indeterminate Sentencing Law (ISL) (former Pen.Code, § 1168a, repealed by Stats.1976, ch. 1139, effective July 1, 1977).   He entered the Department of Corrections (CDC) May 23, 1970.   No requirement existed for annual parole suitability hearings at either the time respondent committed the offense or the time he was received by CDC.

Commencing July 1, 1977, the Determinate Sentencing Law (DSL) provided that parole consideration hearings were to be conducted annually for prisoners for whom a parole date had not been set due to a finding of unsuitability.  (former Pen.Code, § 3041.5, subd. (a) [Stats.1977, ch. 165, § 46].) ¹

The Legislature subsequently amended section 3041.5, effective January 1, 1983, to provide:  “At all hearings for the purpose of reviewing a prisoner's parole suitability ․ where a parole date has not been set ․ the board shall hear each case annually thereafter, except the board may 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 the following year and states the bases for the finding ․”  (§ 3041.5, subd. (b)(2)(A) [Stats.1982, ch. 1435, § 1], emphasis added.)

Respondent appeared before the BPT February 17, 1983, for parole consideration at which time the BPT found him unsuitable for parole and ordered his future parole consideration delayed for two years pursuant to section 3041.5, subd. (b)(2)(A).   October 24, 1983, respondent filed a petition for habeas corpus in the superior court, contending that the BPT unlawfully postponed his subsequent parole suitability hearing for two years and did not set forth sufficient reasons for the delay.

The superior court granted the writ, in part, found that application of the amended statute to Jackson violated the proscription against ex post facto laws, and ordered that the BPT provide him annual parole consideration hearings.

DISCUSSION

Appellant contends that since, at the time respondent committed the offense, he did not have a right to annual parole suitability hearings, the Legislature's subsequent amendment allowing postponement of annual hearings is not an ex post facto law since it is still more favorable to respondent than the law in effect at the time of his offense.

 Both the United States and California Constitutions prohibit legislative enactment of any ex post facto law.  (U.S.Const., art. I, § 9, cl. 3;  Cal.Const., art I, § 9.)   Whether any given law is within this prohibition depends upon the law's effect.  (People v. Smith (1983) 34 Cal.3d 251, 260, 193 Cal.Rptr. 692, 667 P.2d 149.)  “(T)wo 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.”  (Weaver v. Graham (1981) 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, fns. omitted.)   Regarding all but the most obvious examples of ex post facto legislation, “the general rule is that there is no general rule.”  (People v. Smith, supra, 34 Cal.3d 251, 260, 193 Cal.Rptr. 692, 667 P.2d 149.)   Undeniably, application of the 1982 amendment to section 3041.5 to respondent is retrospective since it became operative 20 years after his offense.   Is it, however, ex post facto since the amended statute is more beneficial to the respondent than the law in effect at the time of the offense?

Appellant contends the question is answered in the negative by People v. Benefield (1977) 67 Cal.App.3d 51, 136 Cal.Rptr. 465.   In Benefield, defendant, a minor, was tried as an adult in the superior court and sentenced to state prison.   A subsequently enacted statute provided that a minor under 18 years of age at the time of the offense could not be sentenced directly to state prison.   A year later, the statute was amended to provide that a minor could be sentenced to prison after a diagnostic evaluation by California Youth Authority.   Because of the pendency of his appeal, Benefield's judgment had not become final.   Either of the two statutes was more beneficial to him than the law in effect at his sentencing.   The court rejected his contention that since the amendment was harsher, only the new statute as originally enacted could be applied to him.   The appellate court, relying on the rule of statutory interpretation of In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, concluded that the Legislature intended that “the punishment-mitigating provisions of section 707.2, as amended and now in effect, shall ‘operate in all cases not reduced to final judgment at the time of its passage.’ ”  (67 Cal.App.3d p. 59, 136 Cal.Rptr. 465.)

 We do not find that Benefield controls the case at bench.   Defendant Benefield never received the benefit of the originally enacted new statute.   It was not in effect when he was sentenced nor was it in effect when his judgment became final.   For him it was but a passing hope;  like a fluttering breeze, like a fleeting dream.²  To the contrary, when the DSL was passed, the provisions of section 3040 et seq., which required annual hearings, were specifically made applicable to all prisoners incarcerated on July 1, 1977, regardless of the date on which they committed their crimes.  (§ 3065.)   Thereafter, since July 1, 1977, respondent has been entitled to annual hearings and has received the benefit of former section 3041.5.

In a similar case, In re Bray (1979) 97 Cal.App.3d 506, 158 Cal.Rptr. 745, the Attorney General cited People v. Benefield in an analogous argument.   In Bray, defendant was convicted under ISL and sentenced to a term of six months to life.   He was in prison for a parole violation when the DSL became effective and was released pursuant to its terms.  (See former § 3057.)   He was about to be discharged from parole supervision after having served the maximum of 18 months (the newly enacted maximum), when the law was changed to increase the length of parole to three years.   The BPT attempted to apply this legislation to Bray.

In Bray, the Attorney General argued that the new legislative change to increase the parole period could be applied retroactively because it did not impose a greater punishment than that in effect at the time of the offense.   The court rejected both the Attorney General's argument and the application of People v. Benefield to the case before it:  “We are not here concerned with whether the Legislature intended the first or the second of two ameliorative statutes to retroactively apply.   This is not a situation in which the Legislature has made no express provision for retroactive application of either statute.   We therefore are not called upon to ascertain the legislative intent by means of statutory interpretation.   The Legislature expressly stated that the DSL as operative on July 1, 1977, was applicable to petitioner, and expressly conferred the ameliorative benefits of the DSL on him.   Thereafter, the legislative intent is irrelevant with respect to any amendatory act which imposes a harsher penalty, even though such penalty may be less than that under the ISL.”  (p. 516, 158 Cal.Rptr. 745;  emphasis added.)   The court stated further:  “First, of paramount importance, is the fact that the Legislature expressly stated that the DSL as operative on July 1, 1977, was applicable to prisoners who committed their crimes before that date.   The Legislature expressly conferred the benefits of the DSL on petitioner and placed him in the position as if the DSL parole provisions were the law at the time he committed his offense․”  (p. 517, 158 Cal.Rptr. 745, emphasis added.)

In In re Thomson (1980) 104 Cal.App.3d 950, 164 Cal.Rptr. 99, an ISL prisoner's term was recalculated July 25, 1978, from an indeterminate to a determinate term under the DSL (§ 1170.2, subd. (a) ) and on that date the original version of section 3000, subdivision (b) provided a one-year-maximum parole term after discharge for persons in Thomson's situation.   After the BPT calculated his term, the Legislature amended section 3000, lengthening the parole maximum applicable to Thomson to three years.   The effective date of the amendment was before Thomson's release date.   When he was released, BPT told him his parole was three years instead of one.   The appellate court, although granting Thomson's writ of habeas corpus on a finding that there was not a clear expression of retroactivity to the amendment, recognized that under In re Bray, “once the DSL has applied to a prisoner, the benefits conferred cannot be retroactively taken away.”  (p. 954, 164 Cal.Rptr. 99.)   It further held that retroactive application of the amendment also violated Thomson's right to equal protection of the law.  (p. 954, 164 Cal.Rptr. 99.)  (See also In re Dalton (1981) 117 Cal.App.3d 521, 527–528, 172 Cal.Rptr. 783 and People v. Sovereign (1983) 144 Cal.App.3d 143, 153–154, 192 Cal.Rptr. 469.)

 Appellant seeks to distinguish respondent from defendants in the afore-cited cases on the ground that respondent has no “vested right to parole”.   However, the law need not impair a vested right to violate the ex post facto prohibition.  (Weaver v. Graham, supra, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17.)  “The presence or absence of an affirmative, enforceable right is not relevant ․ to the ex post facto prohibition ․”  (Id., at p. 30, 101 S.Ct., at p. 965.)   Furthermore, since section 3065 placed respondent in the same situation as if section 3041.5 were the law at the time he committed the offense (see In re Bray 97 Cal.App.3d at p. 517, 158 Cal.Rptr. 745), respondent had a “vested right” to annual review hearings.  “Section 3041.5 defines the rights of prisoners and the duties of the board ․”  (In re Fain (1983) 145 Cal.App.3d 540, 546, 193 Cal.Rptr. 483, emphasis added.)

 Moreover, we do not find the right to parole suitability hearings a mere procedural requirement which does not increase respondent's sentence, as urged by appellant.   A statute which increases the time to be served before one is eligible for parole consideration increases punishment and is ex post facto to one whose crime was committed prior to the statute's enactment.   (People v. Garcia (1981) 115 Cal.App.3d 85, 110, 171 Cal.Rptr. 169;  In re Griffin (1965) 63 Cal.2d 757, 760, 48 Cal.Rptr. 183, 408 P.2d 959.)   Similarly, discretionary postponement of respondent's suitability hearing prolongs the possibility to gain early release.  “Eligibility in the abstract is useless;  only an unusual prisoner could be expected to think that he is not suffering a penalty when even though he is eligible for parole and might be released if granted a hearing, he is denied that hearing.”  (Rodriguez v. United States Parole Commission (7th Cir.1979) 594 F.2d 170, 176.)

In discussing the subject of “gain time for good conduct” addressed in Weaver v. Graham, supra, the California Supreme Court stated in In re Stanworth (1982) 33 Cal.3d 176, 181, 187 Cal.Rptr. 783, 654 P.2d 1311:  “In definitive fashion, the high tribunal thus held that the alteration in the method of awarding gain time, even though the change authorized extra gain-time through exemplary conduct at the discretion of the authorities, constituted an impermissible ex post facto law as to the petitioner because it circumscribed his opportunities to gain early release and therefore made his punishment more onerous.”  (Emphasis in original.)   In Stanworth, the California Supreme Court held that new provisions of the DSL enacted after defendant's crime could not constitutionally operate to delay his parole release date.   The Supreme Court stated therein:  “The critical issue before us thus becomes not whether a change in the actual date of release has been effected, but whether the standards by which defendant's date of release is to be determined have been altered to his detriment.” ³  (p. 186, 187 Cal.Rptr. 783, 654 P.2d 1311)  Depriving respondent of the annual parole suitability hearings to which he became entitled in 1977 alters the standards by which his date of release is to be determined to his detriment and makes his punishment more onerous.

We do not suggest, in any manner, that respondent is entitled to an earlier release date, only that he is entitled to annual parole suitability consideration.  (See In re Stanworth, supra, 33 Cal.3d 176, 188, 187 Cal.Rptr. 783, 654 P.2d 1311.)

The order of the superior court is affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Virgil, Aeneid, book I line 793.

3.   The recent cases of In re Seabock (1983) 140 Cal.App.3d 29, 189 Cal.Rptr. 310 and In re Duarte (1983) 143 Cal.App.3d 943, 193 Cal.Rptr. 176, which held that exclusive application of the DSL regulations governing suitability for parole constitutes neither an ex post facto law nor a denial of equal protection of the law, did not address the issue of postponement of parole suitability hearings.

STONE, Presiding Justice.

ABBE and GILBERT, JJ., concur.