Love v. Fitzharris
| Decision Date | 13 March 1970 |
| Docket Number | No. 51906.,51906. |
| Citation | 311 F. Supp. 702 |
| Court | U.S. District Court — Northern District of California |
| Parties | Michael L. LOVE, Petitioner, v. C. J. FITZHARRIS et al., Respondent. |
Patrick Lynch, Los Angeles, Cal., for petitioner.
Atty. Gen. of State of California, Thomas C. Lynch, Gary Garfinkle, San Francisco, Cal., for respondents.
ORDER GRANTING RELIEF BY WAY OF HABEAS CORPUS
Petitioner, charged with possession of heroin for sale, was committed, prior to trial, for observation at the California Rehabilitation Center from which he escaped one month later. He was rearrested in November, 1965, and charged with a second violation of California Health and Safety Code § 11500.5. He again escaped, and when recaptured pleaded guilty to the second possession charge as well as to the escape charges which had been brought. On March 22, 1966, petitioner was given concurrent terms for these offenses. On July 22, he was given another, consecutive, sentence for the original heroin charge.
On August 3, 1966, petitioner received a "Notice of Legal Status" which set his minimum eligible parole date ("M.E. P.D.") at three years and four months. This date was set by the Adult Authority which at that time deemed Penal Code § 30491 to control cases where prisoners were sentenced to two or more consecutive terms for violation of Health and Safety Code § 11500.5.2 On August 25, however, the Adult Authority, on the advice of the Attorney General, changed its interpretation of P.C. § 3049 and H. & S. Code § 11500.5 in such a way that persons serving subsequent sentences under § 11500.5 could not be eligible for parole until they had served at least two and one-half years out of each of the sentences they had been given. This new interpretation of the relevant statutes, though promulgated after petitioner had been tried and convicted of both his violations of § 11500.5, was applied to him. Another "Notice of Legal Status" was sent to petitioner, informing him that his M.E.P.D. was now five years, rather than three years and four months, from the time he had begun serving his sentences. Petitioner argues persuasively that this retroactive application of the Adult Authority's new interpretation of the relevant statutes violates the ex post facto principle.
The state relies on language to the effect that the prohibition of ex post facto enactments applies principally to legislative bodies, does not apply to inconsistent judicial interpretations of statutes, and should therefore not be imposed upon interpretations of statutes by administrative agencies, Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915); James v. United States, 366 U.S. 213, 247-248, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1960) (concurring opinion). But even the language cited by the State admits that the due process requirements of warning and notice apply to judicial interpretations. More specifically, all parties herein grant that under Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), that a statute cannot be reinterpreted by legislature or court in such a way as not to give "fair warning of the conduct which it prohibits".
The crux of the instant case is that the State would confine Bouie to the above quoted language. It is said that petitioner herein at all times knew that his conduct was criminal, and that the reinterpretation here challenged affected only the nature of the punishment to which he would be subject. Thus, it is argued that though the Supreme Court in Bouie spoke of any "unforeseeable judicial enlargement of a criminal statute" as operating like an ex post facto law, the decision itself should only be applied where the defendant's conduct, without the reinterpretation of the statute, would not be deemed improper or immoral. United States ex rel. Almeida v. Rundle, D.C., 255 F.Supp. 936 (1966). The problem, according to the State, should be reduced to one of fair warning of the criminal nature of the conduct involved.
The ex post facto prohibition contained in Art. 1, § 9, cl. 3 of the United States Constitution has long been held to bar imposition by a legislature of a greater penalty upon a defendant than was provided for by the law at the time of...
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Ruip v. U.S.
...be eligible for parole in five years not the three years four months determined earlier. The District Court concluded, Love v. Fitzharris, 311 F.Supp. 702 (N.D.Cal.1972), and the Ninth Circuit affirmed, that this action violated the prohibition on ex post facto laws.9 Rule 11(c)(1), added b......
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Ex parte Alegria, 43785
...measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer.' And in Love v. Fitzharris, 311 F.Supp. 702 (U.S.Dist.Ct., N.D.Calif.) the court noted that both federal and state courts have determined that increases in parole requirements by legislative ......
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Stevenson v. State
...Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. In Love v. Fitzharris, 311 F.Supp. 702 (U.S.Dist.Ct., N.D.Calif.), affirmed 460 F.2d 382 (9th Cir.1972), dismissed as moot 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682, the District C......
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United States ex rel. Hardeman v. Wells
...courts also violates the ex post facto clause, U.S.Const. art. I, § 9, cl. 3. In support of his contention he cites Love v. Fitzharris, 311 F.Supp. 702 (N. D.Cal.1970), aff'd, 460 F.2d 382 (9 Cir. 1972), vacated as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973). The Love case is n......