In re JOHNNIE HOZE 2/25/21: Elderly Parole, no need to serve Thompson "prison" terms.

Congratulation to attorney Marc Norton for this great published case to assist in the Elderly Parole Hearings.

 In Short, the Board determined that Hoze must serve additional sentences for two offenses he committed in prison.  The trial court stated he was entitled to immediate release under the Elderly Parole Program.  Hoze is not required to serve his sentences for in-prison offenses because a grant of parole under section 3055 supersedes section 1170.1(c).

 

This is a straight forward decision and  some Court Excerpt are described below: 

For the FULL case see:  https://www.leagle.com/decision/infdco20110228632

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COURT FINDING:

When 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 (Pen. Code, § 3055). Before he could be released, however, the Board determined that Hoze must serve additional sentences for two offenses he committed in prison, consistent with section 1170.1, subdivision (c) (hereafter, section 1170.1(c)). Hoze filed a habeas corpus petition alleging he was entitled to immediate release under the Elderly Parole Program. The trial court granted the petition. We agree with the trial court: Hoze is not required to serve his sentences for in-prison offenses because a grant of parole under section 3055 supersedes section 1170.1(c). We affirm.  

BACKGROUND:

Hoze began serving an indeterminate life sentence in 1980, after 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 weapon possession in 1981 and again in 1987. Hoze 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 (Thompson); § 1170.1(c).) In 2018, the Board granted Hoze parole under the Elderly Parole Program. The Board considered the nature and gravity of Hoze’s offenses, including the in-prison weapons violations. 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, Hoze participated in vocational training and self-help programs including Alcoholics Anonymous and Narcotics Anonymous, and he received positive work reports from prison staff. The Board explained, “[t]here’s no question in our mind that today as you present in front of us you have matured and that you have grown” and that “your current age of 67 does reduce your recidivism risk.” 

Although the parole decision became final on September 4, 2018, Hoze was not released immediately because the Board concluded that his parole grant did not excuse him from serving his Thompson terms.

 

DISCUSSION:

The issue here is whether the Elderly Parole Program (§ 3055) overrides the requirement, under section 1170.1(c), that an inmate must serve his Thompson term when he would otherwise be released on parole. In its briefs, the Board argued that the program does not override section 1170.1(c). At oral argument, the Board informed us that, in light of the recent legislative amendments to the program (discussed further below), it has modified its position. While the Board does not concede defeat, it agrees that Hoze’s position is reasonable, and it looks to this court for guidance on the issue.

We hold that a parole grant pursuant to section 3055 overrides section 1170.1(c). Hoze is not required to serve his Thompson terms.