Thomson, In re

• Decision Date: 22 April 1980
• Docket Number: Cr. 11654
• Court: California Court of Appeals Court of Appeals
• Parties: In re Thomas L. THOMSON, on Habeas Corpus.

Page 99

164 Cal.Rptr. 99

104 Cal.App.3d 950

In re Thomas L. THOMSON, on Habeas Corpus.

Cr. 11654.

Court of Appeal, Fourth District, Division 1, California.

April 22, 1980.

Quin Denvir, State Public Defender, Jonathan B. Steiner, Richard Lennon and Michael Tanaka, Deputy State Public Defenders, for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Richard D. Garske and Patricia D. Benke, Deputy Attys. Gen., for respondent.

GERALD BROWN, Presiding Justice.

Petitioner Thomson, currently released on parole, seeks a writ of habeas corpus to prevent the Board of Prison Terms (BPT) from extending his maximum parole term from one to three years. BPT bases its extension on an amendment of Penal Code section 3000, subdivision (b), ¹ effective January 1, 1979, which increases the applicable parole term (if there is no parole violation) from one year to three years. (See discussion of amendment in In re Bray, 97 Cal.App.3d 506, 509, 158 Cal.Rptr. 745.)

The superior court initially committed Thomson to prison on June 14, 1978, after his conviction of multiple violations of Penal Code section 476a, subdivision (a) (insufficient funds). He committed some of the offenses before the effective date of the determinate sentencing law (DSL) and others after that date. As mandated in Penal Code section 1170.2 subdivision (a), BPT recalculated Thomson's term from an indeterminate to a determinate term, on July 25, 1978. On that date the original version of Penal Code section 3000, subdivision (b), was still in effect and provided a one-year maximum parole term after discharge for persons in Thomson's position (not serving life sentences). After BPT calculated Thomson's term in September 1978, the Legislature enacted the amendment, lengthening the parole maximum applicable to Thomson to three years. The effective date of the amendment, January 1, 1979, was before Thomson's release date. Thomson was released on parole October 8, 1979. BPT then told him he would be on parole for three years. He challenged the application to him of the parole extension amendment, both by an administrative proceeding before BPT and also by a habeas corpus proceeding in superior court, in which, after issuance of an order to show cause, the court denied the writ.

Does the parole extension amendment in Penal Code section 3000, subdivision (b) apply to persons like Thomson whose terms and release dates were fixed before enactment of the amendment, but who were not actually released on parole before the effective date of the legislation (Jan. 1, 1979)? Other cases have already determined the legislation does not apply, or may not constitutionally be applied, to persons released on parole before January 1, 1979. (In re Bray, supra, 97 Cal.App.3d 506, 158 Cal.Rptr. 745; In re Harper, 96 Cal.App.3d 138, 157 Cal.Rptr. 759.)

Thomson makes three arguments why the amendment may not apply to lengthen his parole term. First, the statute is not expressly retroactive; therefore, under Penal Code section 3, it may not be retroactively applied. Second retroactive application violates the ex post facto clauses of the Federal and California Constitutions. (U.S.Const., art. I, § 9, cl. 3; Cal.Const., art. I, § 9.) Last, such retroactive application of the amendment would deny him equal protection of the laws, by treating him differently from prisoners with recalculated determinate terms who were released on parole before January 1, 1979.

The courts in In re Bray, supra, and In re Harper, supra, differed whether Penal Code section 3000, subdivision (b) is "expressly" retroactive. The last sentence of the subsection states "This subdivision shall be also applicable to inmates who committed crimes prior to July 1, 1977, to the extent specified in Section 1170.2." That phrase was part of the originally enacted statute, and was retained when the statute was amended to increase the maximum parole term to three years. The quoted language clearly declares the original statute is retroactive, like other provisions of the DSL which were retroactively applied to indeterminate sentencing law (ISL) prisoners. The mere retention of the language in the amended statute, however, does not expressly reflect a legislative determination to apply the amendment retroactively. Just because the entire DSL as originally enacted was applied retroactively to ISL prisoners does not mean later changes in the DSL are likewise retrospectively applicable. We find, in agreement with the Harper court, the last sentence of section 3000, subdivision (b), is not a clear expression of retroactivity, therefore the amendment cannot be retroactively applied. (Pen.Code, § 3; People v Daniels, 222 Cal.App.2d 99, 101, 34 Cal.Rptr. 844.)

Further, the statute if retroactively applied, would be ex post facto. Ex post facto laws "retroactively modify the time of discharge from custody to the substantial detriment of the defendant, thereby in effect increasing the punishment previously imposed for his crime." (In re Dewing, 19 Cal.3d 54, 57, 136 Cal.Rptr. 708, 709, 560 P.2d 375, 376.) Initially the DSL could be retroactively applied to ISL prisoners because the package of benefits and detriments did not in overall effect detrimentally increase any prisoner's punishment. Here, however, the amendment to section 3000, subdivision (b) lengthens Thomson's parole term. When the DSL was first enacted and applied to Thomson, the BPT...