WE ASK:
Is a Denial of Parole or worse a Vacated Grant of
Parole Constitutionally Legal when it is based on an inmate's alleged Avoiding
of Restitution by diverting funds from a CDCR account?,
1) Must individuals be given FAIR NOTICE of prohibited conduct before such conduct can be sanctioned; in the case of inmates, that sanction could come in the form of a parole denial.
Currently, the legislature, CDCR nor the BPH have any written statute or regulation, which prohibits anyone who, is not incarcerated from mailing any money to the prison trust account of any inmate. Therefore, with no regulation specifically addressing restitution avoidance, the board’s use of this issue to deny parole could arguably be considered use of an what we remember as "underground regulations"
2) Void for vagueness: the United States Supreme Court has held that “[i]t is a basic principle of due process that any enactment is void for vagueness if its prohibitions are not clearly defined…[w]e insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Secondly, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on…a subjective basis, with the attendant dangers of arbitrary and discriminatory application.”
3) Would the legal concept of ‘waiver and estoppel’ apply against BPH/CDCR’s long history of, turning a blind eye to the process, now commonly referred to as Restitution Avoidance?
At least 2 reasons why (in our opinion) a parallel"creditor" estoppel argument could be made against CDCR and/or BPH:
Equitable Estoppel: This occurs when the creditor's (CDCR) conduct leads the debtor (INMATES) to reasonably believe that 's CDCR "laissez faire" attitude/conduct induced reliance on the inmate to continue their practice of fund shuffle, while incarcerated.
Specifically, CDCR’s decades-long pattern of ignoring the restitution payments would preclude them from suddenly changing direction and taking punitive action on a long-term practice.
Laches: If the creditor (CDCR) unreasonably delays in asserting their rights to collect the debt (Restitution), and the inmate (or family members) are prejudiced by this delay, the doctrine of laches may apply. This can bar the creditor/CDCR from asserting "avoidance of restitution" if the delay has caused the debtor/inmate (or family members) to suffer harm. For example, lose family money or lose a Grant of Parole.
SIDE-NOTE: Many Lifers caught up in this “recent” BPH issue have been adamant that they know about their restitution obligation and fully intend to pay back the restitution once they’ve paroled and become employed. Many inmates do not see that their financial obligation is a burden to be shouldered by their friends or family.
4) Does an inmate have any legal right to the
money solicited by letter (or other) from those outside of CDCR? There is no "property"
of his that he was attempting to conceal in order to avoid
the restitution order. Thus, facts
do not support an attempt to violate section 155.5, subdivision (b). We argue that at most, he was
soliciting a gift of money to be sent to him through another
inmate.
The above enumerated Items are some POINTS to PONDER.
For point #4, see the 2012, (non-published) People v. Drake A133147 (Cal. Ct. App. Jul. 10, 2012) case is an interesting reading-->
==========================================================
A big SHOUT OUT to Attorney Lysa Darden for digging this 2012 case out of
the weeds…. Although it is not a PUBLISHED case – there is a plausible legal
argument to be made in favor of the inmates that recently being Denied Parole or worse have their Grant vacated because of alleged Restitution Avoidance!
In Short: In 2012, an inmate was convicted of attempting to avoid the payment of restitution, within the meaning of Penal Code section 155.5, subdivision (b), while he was incarcerated at Pelican Bay State Prison (Pelican Bay).
In the End: The Attorney General agrees with appellant's argument that there is no evidence the money
he sought was "his own property." Therefore, both parties request that the
judgment be reversed.
========================================================
A133147: 07-10-2012
THE PEOPLE, Plaintiff and Respondent, v. ERIC JOSEPH DRAKE, Defendant and Appellant. RUVOLO
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No115045)
I. INTRODUCTION
Appellant Eric Joseph Drake was convicted of attempting to avoid the payment of restitution,
within the meaning of Penal Code section 155.5, subdivision (b), while he was incarcerated at
Pelican Bay State Prison (Pelican Bay). He contends on appeal that the conviction, which
followed a court trial on stipulated facts, was not supported by substantial evidence and must be
reversed. The Attorney General concedes that there was insufficient evidence to support the
conviction and joins appellant's request that this court reverse the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUNDS
An information was filed by the Del Norte County District Attorney on May 10, 2011, charging
appellant with one count of attempted evasion of the payment of restitution, alleging that he
attempted to sell, convey, assign, or conceal his property with the intent of impairing his financial
ability to pay restitution, in violation of section 155.5, subdivision (b). The information also
included two separate special sentencing enhancement allegations.
As part of a negotiated disposition, it was agreed that appellant would waive a jury trial, and if a
court trial resulted in a conviction as to count one, the prosecution would agree to a sentence of eight
months in state prison, and a dismissal of the special allegations in the information. Consistent
with the parties' agreement, at his arraignment, appellant entered a plea of not guilty, waived a
jury trial, and requested a court trial on the information. The trial court requested the parties
to file trial briefs forthwith.
From the subsequently filed briefs it became apparent that the charge in the information arose
from events which occurred while appellant was incarcerated in Pelican Bay as a result of two
convictions for second degree robbery with a firearm enhancement (§§ 211, 12022.53, subd. (b),
respectively). As part of the sentence he received for these convictions, appellant had been ordered
to pay restitution in the amount of $2,030. In October 2010, appellant attempted to send a
letter to a correspondent outside of Pelican Bay requesting that they send money to appellant by
way of a deposit into the prison account of another inmate. This would allow appellant, who was on
lockdown, to purchase items at the prison canteen through the other inmate, who was not on
lockdown. Also, following this procedure would allow appellant to avoid the confiscation of half of
the amount deposited to satisfy the outstanding restitution order. The letter was intercepted by a
correctional officer in the outgoing mail, and was then confiscated by prison officials before it left
Pelican Bay. The parties entered into a formal stipulation concerning these facts for purposes of
the court trial.
The court trial took place on August 18, 2011. Appellant was found guilty of violating section
155.5, subdivision (b). Presentence reports were waived, as well as a referral to the probation
department. The court then sentenced appellant to eight months in state prison, consecutive to the
sentence he was then serving in Pelican Bay, with additional fines and penalties imposed. This appeal followed.
III. DISCUSSION
Appellant contends that the stipulated facts to not support an attempt to violate section 155.5,
subdivision (b). He argues that there was no evidence that he had any legal right to the money
he solicited by letter from those outside of Pelican Bay. Thus, there was no "property" of his that he
was attempting to conceal in order to avoid the restitution order. At most, he was soliciting a gift
of money to be sent to him through another inmate. Section 155.5, subdivision (b), provides: "(b) Any
defendant who is ordered to pay any fine or restitution in connection with the commission of a
felony and who, after the plea or judgment and prior to sentencing for the same felony offense, or
during the period that a restitution order remains unsatisfied and enforceable, sells, conveys,
assigns, or conceals his or her property with the intent to lessen or impair his or her financial
ability to pay in full any fine or restitution which he or she may lawfully be ordered to pay or to
avoid forfeiture of assets derived from either criminal profiteering pursuant to Chapter 9
(commencing with Section 186) of this title or trafficking in controlled substances pursuant to
Chapter 8 (commencing with Section 11470) of Division 10 of the Health and Safety Code, is
guilty of a felony." (Italics added.)
The Attorney General agrees with appellant's argument that there is no evidence the money he sought was "his own property." Therefore, both parties request that the judgment be reversed. We agree, and we reverse the judgment of conviction entered by the trial court. *
IV. DISPOSITION
The judgment is reversed.
.
.jpg)