COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION TWO
In re GILBERT TREJO
A149064 (Marin CountySuper. Ct. No. SC197534A)
This case stand for the fact that Youth Offenders, are NOT Required to Serve Thompson Terms After Granted Parole, if the new crime was committed "in prison" and under the age of 23 years old. Furthermore, if there were detained longer than needed, the excess time can be credited against the Parole time.
Whether a “youth offender” sentenced to a term of 15 years to life for an offense committed when he was 17 years old and found suitable for release on parole pursuant to the youth offender parole provisions of Penal Code section 3051 must, before being released, serve a consecutive sentence imposed for a crime committed in prison at age 20.
We conclude that the decision of the Board of Parole Hearings requiring petitioner to serve the consecutive term after being granted parole, and its implementation by the Department of Corrections and Rehabilitation, were erroneous.
Petitioner was convicted of second-degree murder and sentenced to 15 years to life in prison. The offense was committed in 1979, when petitioner was 17 years old. In 1982, at age 20, he pled guilty to assault with a deadly weapon on a peace officer and possession of a deadly weapon by a prisoner and was sentenced to four years, to be served consecutively to his life sentence. In 2015, after serving 35 years in prison, petitioner was found suitable for parole as a youthful offender under Penal Code 3051, effective in November 2015. Petitioner claimed that his release date was recalculated as November 2, 2017, based on a correction in his credit earning status. In June 2016, petitioner filed a habeas corpus petition challenging the legality of his continuing incarceration.
The trial court denied relief, concluding that section 3051 does not exempt a youthful offender granted parole from serving a consecutive sentence for an offense committed in prison, citing section 1170.1(c), which provides that a consecutive sentence for an in-prison offense “shall commence from the time the person would otherwise have been released.” The court of appeal granted relief; section 1170.1(c), does not apply to petitioner’s case because his in-prison offense was committed before he was 23 years old, so he was entitled to release at the end of his indeterminate sentence pursuant to section 3051(d).
Respondent is ordered to amend petitioner’s release date to November 2, 2015, and to deduct from his parole period the days of incarceration served beyond that date. Our order filed on April 10, 2017, granting petitioner’s motion for release, ordered respondent Warden of Ironwood State Prison to release petitioner on parole, in accordance with the terms of his parole grant and demands of due process pending resolution of his petition in this court.
We now order that relief as the final decision of this court on the petition for writ of habeas corpus. Good cause appearing, this decision shall be final as to this court immediately. (Cal. Rules of Court, Rule 8.387, subd. (b)(3)(A).)
The full Court of Appeal decision can be downloaded HERE.
Congratulations to Attorney Tracy Lum for this Published Opinion.
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