People v. Drake A133147 (Cal. Ct. App. Jul. 10, 2012): Is a Denial of Parole or worse a Vacated Grant of Parole Legal when BPH alleges Avoidance of Restitution?

  

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-->

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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.

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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.

 

.

 

RESENTENCING SB483: People v. Rhodius (2023) 97 Cal.App.5th 38 being reviewed (2024) by CA Supreme. Trial Court stated: not entitled to a full resentencing under SB483 because his prison priors were imposed and stayed rather than executed; a Split in authority exist!

This is a CA Court of Appeal case from the 4th District that was granted review (earlier this year) by the California Supreme Court. A Case to watch because the lower Court decided the inmate requesting resentencing, was not entitled to resentencing because their prison priors were imposed and stayed rather than imposed and executed.

There is a split in authority between this People v. Rhodius case and People v. Renteria (2023) 96 Cal.App.5th 1276 (H049980) [full resentencing required based on SB 483 where prison priors were imposed but stayed] and People v. Christianson, D081330 (Nov. 17, 2023)  - same.

Here, in People v. Rhodius, the trial court declined to hold a full resentencing. Defendant appealed.

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Name: People v. Rhodius

Case #: E080064

Court: CA Court of Appeal

District 4 DCA

Division: 2

Citation: People v. Rhodius (2023) 97 Cal.App.5th 38

Opinion Date: 11/13/2023

 

Subsequent History:The petition for review is granted  2/21/24 (S283169)

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People v. Rhodius, S283169. (E080064; 97 Cal.App.5th 38; Riverside County
Superior Court; RIF1502535.) Petition for review after the Court of Appeal affirmed an
order denying a post-judgment motion in a criminal matter. This case presents the
following issue: Does Senate Bill No. 483 (Stats. 2021, ch. 728) entitle a defendant to a
full resentencing hearing under Penal Code section 1172.75 if the defendant’s prior
prison term enhancements (Pen. Code, § 667.5, subd. (b)) were imposed and stayed,
rather than imposed and executed.

 

CASE SUMMARY:

Defendant was not entitled to a full resentencing under Senate Bill No. 483 because his prison priors were imposed and stayed rather than executed. In 2016, defendant was sentenced to one felony count, and the court imposed but stayed one-year sentences for each of his two prison priors under section 667.5(b). In 2022, based on SB 483, CDCR identified defendant as potentially eligible for resentencing, and pursuant to CDCR’s notification, a hearing to recall and resentence was held. The trial court declined to hold a full resentencing because defendant’s prison priors were imposed and stayed rather than imposed and executed. Defendant appealed. Held: Affirmed. 

Section 1172.75(a) states that enhancements under section 667.5(b), with limited exceptions, are legally invalid. In People v. Gonzalez (2008) 43 Cal.4th 1118, the California Supreme Court addressed the meaning of the word “impose” in the context of section 12022.53, holding “the word ‘impose’ ensures that the statute’s punishment and legislative intent will be carried out only if it is interpreted as shorthand for ‘impose and then execute.” Further, section 1172.75 specifies that “[r]esentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement” unless the lesser sentence would endanger public safety.

 To interpret “imposed” as used in section 1172.75(a) to include when a sentence was “imposed and stayed” would require any sentencing court faced with an “imposed and stayed” enhancement to arbitrarily lower a sentence simply because the judgment contained a stayed enhancement. The plain language of the statute and its legislative history support the court’s interpretation. Defendant was not entitled to a full resentencing because his prison prior enhancements were stayed.

New 2024 Parole Hearing Tips and Rev.2 of TIPs-2 for the Family of Inmates Now available to download

 TIPS (2024) for INMATES:

Our Law Office was finally able to update our 4-year old TIPs and Family TIPS-2. We made both 2024 documents available via a download link on our website. There is a small convenience fee that helps to subsidize our "website cart" for the ease to download (TIPs 2024) immediately. If you want our law office to US Legal Mail a copy to your Love One (LO) there is an extra fee for the hard copy; it includes the cost of Printing, Shipping and Handling. We will snail mail a copy to the prison for your LO, provide the Name/CDC#/Prison/housing Unit.

TIPS and TIPS-2, both documents are available via US Legal mail to the prison but the price includes our cost to Print a hard copy as well as Shipping and Handling. Click our website LINK HERE for TIPs  it will display 4 items; both TIPS document with two options  1) Download (cheaper) or 2) Hard copy that we will US Legal mail to the address you provide.

2024 TIPs is an easy to read document with a non-legalese approach to prepare the inmate on WHAT to expect during the Parole Suitability Hearing (BPH). TIPs also contains SAMPLE Questions from both the Commissioners (BOARD) and the Prison Psychologist. The New 2024 Edition contains information on the BPH 2024 Parole Process Handbook, COVID19 permanent Video Hearings, information on the new "Restitution Avoidance" Violations, and EDD Fraud violations.

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TIPS-2 (2024) for Family of INMATES:

Due to COVID19  Prison movement was very restricted during 2020-2023; inmates could not attend Group or do Self Help classes to increase their Rehabilitation programs. The Law Office of Diane T. Letarte (619-233-3688) created TIPS-2 for the Family of the inmates so they could find external resources to help their Love One (LO) in prison.

We finally were able to update the TIPS-2 Self-Help Resources Packet for 2024; it is available to Friends and Family Members, for a nominal Web fee convenience to download it. You can make as many copies as you want once downloaded - there is no copyright restrictions. If you want our law office to US Legal mail a copy to the prison we charge for print, Shipping and handling - CLICK HERE for the Hard copy purchase of TIPS-2 and follow directions on our website.

The TIPS-2 Resource pages (download) (over 60 pages)  are from all different sources that our office as acquired over many years of practice, to assist our Long Term and Lifer Offender clients. We have compiled documents in one packet so that Family/Friends can assist their Love One in their Journey of Rehabilitation. We were able to add new Free Correspondence course addresses for inmates to use. Some classes are Free and others are available for a small fee for their services. This packet contains several different topics; Book List, Book Report Sample, Correspondence Classes (some free), Transitional Housing resources, Newsletters and how to subscribe to the Newsletters.  

The Law Office of Diane T. Letarte  has no affiliations with any of the Newsletters, except that we also subscribe to them; they have good updates on Parole Hearings and new case law.

 

 

 

 

 

08/21/2024 People v. Sorto : The trial court erred in denying defendant’s PC 1170(d) petition because sentence was functionally equivalent to LWOP terms

Case Name: People v. Sorto, Case #: B331652,
Court: CA Court of Appeal, District: 2 DCA, Division: 3, Opinion Date: 08/21/2024

The trial court erred in denying defendant’s PC 1170(d) petition when defendant was sentenced to more than 100 years for crimes committed when he was 15. 

California's youth offender laws, designed to provide rehabilitative opportunities for young people who have committed crimes, are facing scrutiny under the Equal Protection Clause. This constitutional provision mandates that all individuals within a jurisdiction receive equal treatment under the law. Critics argue that the current youth offender laws may unfairly disadvantage certain groups of young offenders, particularly those from marginalized communities, leading to disparate outcomes. As a result, the Courts are doing their part to reassess and make sure the youth offender  laws are applied equitably to all youth offenders.

Under People v. Heard (2022) 83 Cal.App.5th 608, juvenile offenders sentenced to functionally equivalent LWOP terms are entitled to PC 1170(d) relief under the constitutional guarantee of equal protection. Heard is consistent with People v. Hardin (2024) 15 Cal.5th 834 and People v. Franklin (2016) 63 Cal.4th 261. Parole eligibility under PC 3051 does not render juvenile offenders ineligible for relief under section 1170(d).


SUMMARY:
 
A court sentenced Eddie Sorto to more than 100 years In prison for crimes he committed when he was 15 years old. After serving 15 years of his sentence, Sorto petitioned for recall and resentencing under Penal Code section 1170, subdivision (d) (section 1170(d)).
 
Sorto acknowledged the statute expressly applies only to juvenile offenders sentenced to explicit life without the possibility of parole (LWOP) terms. Nevertheless, He argued equal protection guarantees relief to offenders, like himself, sentenced to long prison terms that are the functional equivalent of LWOP.

About a year before the trial court considered Sorto’s petition, the court in People v. Heard (2022) 83 Cal.App.5th 608 (Heard) held juvenile offenders sentenced to functionally equivalent LWOP terms are entitled to section 1170(d) relief under the constitutional guarantee of equal protection. Despite this authority, the trial court denied Sorto’s petition on the ground that he had not been sentenced to an explicit LWOP term.

On appeal, Sorto raises the same equal protection argument and urges us to follow Heard.  The Attorney General argues Heard was wrongly decided and is contrary to California Supreme Court precedent. We reject the Attorney General’s arguments and conclude offenders sentenced to functionally equivalent LWOP terms —like  Sorto — are entitled to section 1170(d) relief under the constitutional guarantee of equal protection.

We also hold parole eligibility under section 3051 does not render those offenders ineligible for relief under section 1170(d).

Accordingly, we reverse the trial court’s denial of Sorto’s petition and remand the case for the court to consider whether Sorto meets the other requirements for relief.

DISPOSITION
We reverse the order denying Eddie Sorto’s petition for relief under section 1170(d).  On remand, the court shall reconsider Sorto’s petition in accordance with this opinion.


The full opinion is available on the court’s website here:

 https://www.courts.ca.gov/opinions/documents/B331652.PDF

Prop 57 litigation: CDCR is currently prohibited from releasing on parole, ISL,who had a parole hearing conducted based on a Minimum Parole Eligible Date that was advanced (earlier date) based on Proposition 57 credit earning

California Proposition 57, also known as the Public Safety and Rehabilitation Act of 2016, was a ballot initiative that passed in California on November 8, 2016.  In short, it gave CDCR the authority to award credits earned for good behavior and approved rehabilitative programming or educational achievements to those incarcerated. 

To implement this policy CDCR created new regulations, (sections 3043 through 3043.7 of Title 15) that went into effect on May 1, 2017. The regulations impacted Minimum eligible Parole Dates (MEPD). For many determinate sentenced (DSL) prisoners, these credits provided a way to a shorter time in prison. For lifers, credits applied under the Prop. 57-promulgated regulations impacted not the direct length of their sentence, but the timing of their initial (first) parole hearing. 

Fast forward to 2018 when an organization, Criminal Justice Legal Foundation (CJLF, founded in 1982), sued CDCR in Sacramento County Superior Court, on the premise that CDCR was not authorized by Prop. 57 to promulgate the regulations applying credits to an individual’s MEPD. 

Pursuant to the December 13, 2023 ruling and January 26, 2024 judgment by the Sacramento County Superior Court, CDCR is currently prohibited from releasing on parole, indeterminately sentenced (ISL) people who had a parole hearing conducted based on a Minimum Parole Eligible Date that was advanced (earlier date) based on Proposition 57 credit earning.

In other words, the order from the Court said CDCR must (1) stop applying Prop 57 credits when calculating MEPDs, and (2) stop conducting parole suitability hearings based on MEPDs that have been advanced by Prop 57 credits, and (3) stop releasing those people found suitable for parole at hearings conducted on this basis. 

CDCR filed an appeal in January 2024, prompting the court to issue a partial stay to parts of the decision, allowing BPH to continue to apply Prop. 57 credits to MEPDs and continue to hold parole hearings for those impacted, but confirming the HOLD on releases for those individuals, if they are found suitable. Basically, the department can calculate when a lifer’s initial hearing will be held, based on Prop. 57 credits, and can continue to execute those hearings, but just can’t release those who are granted parole, at one of these re-calculated hearings. 

CDCR estimates this legal fight is likely headed to the Cal Supreme Court, and may not be decided for a couple of years. As of the writing of this BLOG, there are a number of individuals with grants of parole still in CDCR custody. We do not have numbers on how many inmates are still scheduled for parole hearings in the next few months. Because of this litigation (and to be on the safe side) CDCR is recalculating the MEPD dates of those impacted by removing Prop. 57 credits, after the individual is granted parole. Keep in mind that only credits applied under Prop. 57 are at issue and not all the RAC or milestone credits.

Please realize that this litigation was NOT initiated by CDCR nor BPH;  they are actually defending the lawsuit to assist inmates to keep their P57 credits that got them the earlier hearing date (and potential early grant). Attorneys from CDCR, BPH, and the Attorney General’s office are involved in fighting for the eventual overturning of this decision. 

Below is the current parole hearing process while still in Litigation: 

--. If someone is granted parole - Case Record Services and the Board will review and recalculate MEPD of people impacted by the litigation 

 -- If the newly recalculated MEPD is a date in the past, CDCR will release the person pursuant to standard processes

-- If the newly calculated MEPD is a date in the future, CDCR will review all other relevant parole eligible dates (including Youth Parole, Nonviolent Parole, Elderly Parole Eligibility Dates). On the earliest parole eligible date, CDCR will release the person pursuant to standard processes

-- The Board will continue to hold parole hearings that may have been advanced under Prop. 57 credits

 -- For those who are found suitable but fall under this cloud, any parole grant given will remain valid and s/he will be released as soon as CDCR can find a way to do so using another MEPD (elder, youth, or other factors) or when the litigation is concluded. 

According to CDCR you will NOT be impacted under the Prop. 57 cloud if: 

--Your MEPD was before May 1, 2017 (before Prop 57 credits were applied) 

--A Youth Parole Eligible Date (YPED) that is in the past 

--A Nonviolent Parole Eligible Date (NPED) that is in the past, or 

--An Elderly Parole Eligible Date that is in the past (EPED)

--Your grant was attained at a grant held in line with Nonviolent Parole Eligible Date (NPED), Youth Parole Eligible Date (YPED), or Elderly Parole Eligible Date (EPED). 

MEPDs will continue to be calculated with Prop 57 credits and will continue to be reflected in SOMS and CIRIS (BPH/CDCR databases) and the Board will continue to conduct parole hearings based on this date. Because of these database input, it will be almost impossible for you, your attorney or your counselor to easily determine if you will be impacted by this on-going litigation. 

What advocacy is being done to support those who are affected?
On July 29, 2024, advocates sent a letter asking the Governor to grant clemency to all whose release dates are impacted by this litigation and Secretary Macomber to offer those impacted the choice of being housed in a Pre-Release Community Program (MCRP or FCRP) for the remainder of their incarceration. The letter also urges state policy makers to identify potential legislative solutions. Please note, there is no guarantee that this letter will result in any of the requested outcomes.

Some potential work-around is for the inmate to Waive (postpone) the hearing that was advanced due to credits under Prop. 57. This is a case-by-case basis decision and it should be reviewed with the Inmate’s attorney. There are many factors that come into play at a Parole Hearing - it is best to discuss this potential option with the inmate’s attorney. This choice may have a financial impact if you are using a FREE state appointed attorney vs. a PAID attorney, that will normally charge per hearings.