California Court of Appeal: Prisoners Are Not Required to Serve ‘Thompson Terms’ After Grant of Parole Under Elderly Parole Program
Johnnie Hoze began serving an indeterminate life sentence in 1980 upon conviction of several offenses, including attempted kidnapping, assault with a deadly weapon, and robbery.
While incarcerated, he was convicted of weapon possession in 1981 and 1987, receiving three years for the former and one year for the latter. The weapons convictions are the “Thompson terms” at issue.
After serving nearly 40 years in prison, the Board of Parole Hearings (“Board”) granted him parole under the EPP. Even though the parole decision became final on September 4, 2018, Hoze was not released because the Board concluded his parole grant did not excuse him from serving his Thompson terms. Hoze sought habeas relief, contending that the EPP overrides § 1170.1(c)’s requirement that a prisoner must serve his Thompson term when he would otherwise be released on parole. The habeas court granted his petition and ordered his release. The Board appealed, agreeing that Hoze’s position was tenable but nevertheless sought guidance from the Court.
The Court observed that the EPP, codified at § 3055, originated in 2014 as part of a court-ordered remedy for the state’s failure to provide adequate medical care and mental health care to prisoners as a result of overcrowding, in violation of the Eighth Amendment as held in Brown v. Plata, 563 U.S. 493 (2011) and In re Butler 4 Cal.5th 728 (2018). To reduce the prison population, a federal court ordered the state to implement the EPP – the main purpose of which is to curb rising medical costs of the geriatric prisoner population.
As it now stands, the EPP reviews the parole suitability of prisoners who are 50 years of age and have served a minimum of 20 years of continuous incarceration on their indeterminate sentence. The Board gives special consideration to “whether age, time served, and diminished physical condition, if any, have reduced the elderly inmate’s risk for future violence.” § 3055(c). If the Board finds the prisoner suitable for parole, it is required to “release the individual on parole as provided in Section 3041” subject to all review periods in which the governor may reverse a grant of parole or request further review. §§ 3041(a)(4), 3041.1, 3041.2.
The Thompson Court ruled that § 1170.1(c) requires prisoners convicted of felonies while in prison serve those terms consecutively from the time the person would have otherwise been released from prison on parole. Hoze’s issue required the Court to determine if § 3055 overrides § 1170(1)(c).
This was an issue of statutory construction, requiring the Court to construe the Legislature’s intent, starting with the statute’s words and giving those words their ordinary meaning. Moran v. Murtaugh Miller Meyer & Nelson, LLP, 152 P.3d 416 (Cal. 2007). The Court also must presume the Legislature was “aware of existing laws” when it enacted § 3055 and that “it intended to maintain a consistent body of rules.” In re R.G., 35 Cal.App.5th 141 (2019). When “legislation has been judicially construed and a subsequent statute on the same or analogous subject uses identical or substantially similar language, we may presume that the Legislature intended the same construction, unless a contrary intent clearly appears.” Moran.
The EPP was modeled after the Youth Offender Parole Program (“YOPP”), which was codified at § 3051. The YOPP authorizes the Board to release juvenile offenders who have served between 15 and 25 years in prison, depending on the offense. People v Franklin, 370 P.3d 1053 (Cal. 2016). Several courts of appeal have concluded the YOPP supersedes Thompson. (See opinion for citations.) Neither program lists the sentencing statutes that are affected by a parole grant, but both programs include determinate and indeterminate sentences. In re Trejo, 10 Cal.App.5th 972 (2017). The Legislature listed specific types of offenses that are excluded from benefit of the programs (viz., §§ 1170.12(c)(2)(B), 3051(h), 3055(g)) but didn’t include § 1170.1(c). “Under the maxim of statutory construction, ‘expressio unius est exclusio alterus,’ if exemptions are specified in a statute, the Court c[an] not imply additional exemptions unless there is a clear legislative intent to the contrary.” In re Williams, 24 Cal.App.5th 794 (2018). The Court in the instant case discerned no indication of a contrary intent.
Both the EPP and the YOPP direct that upon a grant of parole, the Board “shall release the individual on parole as provided in Section 3041.” §§ 3051(d), 3055(e). And In re Jenson, 24 Cal.App.5th 266 (2018) construed the plain meaning of the word “release” in § 3051 to mean release from prison. The Court discerned no indication that the Legislature intended “release” to have a different meaning for purposes of § 3055.
Thus, the Court concluded that the Legislature intended to authorize the Board to supersede Thompson terms pursuant to § 1170.1(c) upon grant of parole under the EPP, consistent with the YOPP.
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
In re Hoze
| Year | 2021 |
|---|---|
| Cite | 2021 Cal. App. LEXIS 164 (2021). |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |
