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Do In-Prison Offenses Bar Release on Elderly Parole?
Elderly Parole originated in 2014 as part of a court-ordered remedy for the state’s failure to provide adequate medical care and mental health to prison inmates as result of overcrowding, in violation of the Eighth Amendment. See Brown v. Plata (2011) 563 U.S. 493, 499-500; see also In re Butler (2018) 4 Cal.5th 728, 736-37.
The Reader’s Digest Version: While it may seem counterintuitive, in-prison offenses do not bar one from early release under Elderly Parole.
To further reduce the prison population, a federal court ordered California to implement what became the Elderly Parole Program. In 2018, the California Legislature codified the program at Penal Code § 3055. Its “main purpose was to curb rising medical costs of the geriatric inmate population and to provide a ‘compassionate” release for those elderly individuals.” People v. Contreras (2018) 4 Cal.5th 349, 374-375.
Originally, the program was intended to “review the parole suitability of any inmate who is 60 years or older and has served a minimum of 25 years of continuous incarceration on his or her current sentence, serving either a determinate or indeterminate sentence.”
Effective January 1, 2021, the Legislature expanded the program to inmates who are at least 50 years of age and have served a minimum of 20 years of continuous incarceration on their current sentence. Penal Code § 3055(a) (Assembly Bill 3234 (which also deals with Judicial Diversion)).
When considering the release of an inmate, 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.” Penal Code § 3055(c). If the Board finds the inmate suitable for parole, it is required to “release the individual on parole as provided in section 3041.” Penal Code § 3041 required, in turn, that upon a grant of parole, the inmate shall be released “subject to all applicable review periods” – referring to the period in which the governor may reverse a grant of parole or request further review. Penal Code §§ 3041(a)(4), 3041.1, 3041.2.
Court of Appeal First Appellate District San FranciscoWhen Johnnie Hoze was 67 years old, and after he had served nearly four decades in state prison on an indeterminate life sentence, the Board of Parole Hearings (“Board”) found him suitable for parole under the Elderly Parole Program.
In 1980, he was convicted of attempted kidnapping, assault with a deadly weapon, robbery, vehicle theft, oral copulation, kidnapping with intent to commit robbery, and battery by means of force and violence. While incarcerated, he was convicted of weapons possession in 1981 and again in 1987. Hose was sentenced to two additional consecutive prison terms, known as Thompson terms, for the in-prison offenses – three years for the first conviction and one year for the second. See In re Thompson (1985) 172 Cal.App.3d 256; Penal Code § 1170.1(c).
When Hoze was found suitable for parole in 2018, the Board considered the nature and gravity of Hozes’ offenses, including the in-prison weapons violation. It concluded that based on “the positive adjustments you’ve made over the last decade for sure . . . it was our opinion that based on the positives that you no longer pose a risk of danger to society.” While in prison, Hose participated in vocational training and self-help programs including Alcoholics Anonymous and Narcotics Anonymous and he received positive work reports from prison staff.
Although the parole decision became final on September 4, 2018, Hose was not released immediately because the Board concluded that his parole grant did not excuse him from serving his Thompson terms.
Hose then filed an appeal of the Board’s decision to the Marin County Superior Court. The trial court judge ruled in Hoze’s favor and the People appealed to the First Appellate District.
The First Appellate District then held that a parole grant pursuant to 3055 overrides Penal Code § 1170.1(c) (Thompson time) (In re Hoze (2021 DJDAR 1890). It affirmed the trial court’s ruling that Hose was not required to serve his Thompson terms before release. The appellate court found that a grant of parole under 3055 supersedes § 1170.1(c). Since 3055 was codified after 1170.1 and excluded consideration of 1170.1, it could be assumed that the Legislature intentionally omitted reference to 1170.1(c).
We bring this case summary to the reader’s attention because we anticipate that Elderly Parole will become more common with it being broadened in its scope as of January 1, 2021.
The citation for the First Appellate District Court ruling discussed above is In re Johnnie Hoze (1st App. Dist., 2021) 61 Cal. App. 5th 309, 275 Cal. Rptr. 3d 611.
For more information about elderly parole and early release from prison issues, please click on the following articles:
