Elderly Parole law AB3234: new Regulations for Elderly Parole finally enacted [by BPH] under 15 CCR 2449.40

Even though the Elderly Parole law AB3234 became effective last year. BPH is finally getting around to enacting Sections 2449.40 - 2449.43 [of Title 15], governing parole consideration hearings for elderly inmates. 

It may take CDCR a while to review all the inmates that qualify under AB3234 Elderly Law becasue CDCR recently received the Regulations from the Board Of Parole Hearings (BPH). 

The important sections of the new regulations enumerating the Elderly Inmate Factors are under Section 2449.43. The factors will be given Special Considerations during the Elderly Parole Hearings.

They are in summary as follows: 

§ 2449.43. Elderly Inmate Factors. 

 (a) Age. Consideration of an elderly inmate’s age includes the following: 

(1) Cognitive decline and its impact on an elderly inmate’s ability to process information, convert thought to action, the ability to learn, the ability to plan, recall or reorganize information, organize information, control impulses, execute a task, incorporate feedback, alter a strategy, sustain complex attention, or to calm down when emotionally aroused; 

 (2) Physiological changes that decrease the motivation to commit crime or be violent. 

 (b) Time Served. The impact of long term confinement of elderly inmates includes, consideration of the following: 

 (1) Reduced criminal propensity; 

(2) Alteration of attitudes and beliefs over time; 

(3) Evidence of prosocial routines; 

 (4) Social conformity; 

 (5) Detachment from crime producing environments and peers. 

(c) Diminished Physical Condition. The diminished physical condition of elderly inmates includes, consideration of the following: 

(1) The capability of an inmate to physically commit crimes and violence; 

(2) Chronic or terminal illness; 

 (3) Evidence of sensory impairment due to visual, hearing or speech impairment; 

 (4) Inability to ambulate or difficulty in ambulating without an ambulation assistive device; 

(5) Nursing Care Acuity; 

 (6) Diminished mental capacity; 

(7) Assistance with daily living activities that includes but is not limited to, feeding, bathing, dressing, grooming, work, homemaking, or communication; 

(8) Permanent incapacitation due to medical, physical, or mental health condition, or any other condition that results in permanent incapacitation; and 

 (9) Other evidence of diminished physical condition. 

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PENDING CHANGES TO THE BOARD OF PAROLE HEARINGS DEPARTMENT REGULATIONS can be seen at: the CDCR website

 

Pursuant to the requirements of Government Code section 11346.8 (c). and section 44 of Title I of the California Code of Regulations, the Board of Parole Hearings is providing notice of changes made to Regulation Number 21-04, proposed sections 2449.40, 2449.41, 2449.42, and 2449.43. Additionally. pursuant to the requirements of Government Code sections 11346.8( d). 11346. 9( a)( 1), and 11347.1. the Board of Parole Hearings is providing notice of the addition of a document to the rulemaking file to make available for public comment and inspection. 

The document added to the rulemaking file is as follows: 

Supplement to the Initial Statement of Reasons  

Regulatory Text Document is available for public inspection at the Board's office located at 1515 K street, 6th Floor, Sacramento. California 95814, from March 10, 2022, through March 25. 2022 between the hours of 9:00 AM and 5:00 PM. This document is also available to view on the board's website at: Regulatory Changes - Board of Parole Hearings (ca.gov). 

If you have any comments regarding the proposed changes or the Supplement to the Initial Statement of Reasons. the Board will accept written and electronic email comments between March 11, 2022 and March 25, 2022. 

All written and electronic email comments must be submitted to the Board no later than March 25, 2022, and addressed to: 

Chancellor Veal, Staff Attorney 
Board of Parole Hearings 
P.O. Box 4036 Sacramento, CA 95812-4036 
E-mail: BPH.Regulations@cdcr.ca.gov 

All written comments received by March 25,2022, which pertain to the indicated changes or the Supplement to the Initial Statement of Reasons will be reviewed and responded to by the Board's staff as part of the compilation of the rule making file. Please limit your comments to the modifications to the text and the Supplement to the Initial Statement of Reasons.

People v. Williams (2021) 71 Cal.App.5th 1029: Parole Revocation Report required for a Lifer who Violates Parole

Case Name: People v. Williams (2021) 71 Cal.App.5th 1029, District: 1 DCA , Division: 1 , Case #: A159914 Opinion Date: 11/23/2021

A big Thank You to the CCAP folks who review and summarize many of the Appellate cases. The Case Holding below is from CCAP and reproduce here for Education Purpose.

This case is specific to Lifers who violate Parole after being release to the free community. Yes, this happens! (but not too often).  All Parole Revocation Hearings are no longer done in the county jail by Commissioners, they are reviewed in Court with the District Attorney having the choice to file a Revocation Petition. As of 2013, the BPH no longer adjudicate revocation proceeding but as a LIFER, BPH still controls the case.

If  the  parolee  is  subject  to  Life  parole  under  sections  3000(b)(4)  and  3000.1  for  murder  or  designated  sex  offenses,  and  the  court  finds  the  parolee  has  violated the law or a condition of parole, the parolee "shall be remanded to the custody of  [CDCR]   and   the   jurisdiction   of   the   [BPH]   for   the   purpose   of   future   parole  consideration."    (§  3000.08(h).)    Thereafter  the  BPH  will  schedule  a  hearing  within  12  months to determine parole eligibility.  (§ 3000.1(d).). These hearing are known as Reconsideration Hearings within BPH (a.k.a. PC 3000). They are held every year and not subject to Marsy’s Law, which have the 3 to 15 year denial periods, at a Parole Suitability Hearing.
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Here the  Parolee was no longer in Custody. The Court chose to make a ruling; Hence, exercised its discretion to address the merits because the issue is of continuing public interest and likely to recur yet evade appellate review.

 Case Holding: Even where imprisonment is mandatory following a parole violation by a person serving a life term, the court must obtain the parole agency's written report under Penal Code section 1203.2, subdivision (b)(1).

Defendant was on parole from a life term sentence. He was found in violation of parole and remanded to prison, as required by Penal Code section 3000.08, subdivision (h). On appeal, defendant argued the trial court erred in refusing to refer the matter to the parole agency for a written report (Pen. Code, § 1203.2, subd. (b)(1)) before ruling on the revocation petition.

 Held: Appeal dismissed as moot, but merits reached. Where a parole revocation petition is filed by the parole agency, section 3000.08, subdivision (f) requires that the petition be accompanied by “a written report that contains additional information regarding the petition, including the relevant terms and conditions of parole, the circumstances of the alleged underlying violation, the history and background of the parolee, and any recommendations.”

 Where, as here, the revocation petition is filed by the prosecutor, a report need not accompany the petition. However, a report is still required. Under section 1203.2, subdivision (b)(1), once the court receives a revocation petition filed by the district attorney, it must refer the petition to the parole agency for a written report, and it must consider that report before ruling on the petition. The statute contains no exception for inmates serving life sentences. Although section 3000.08, subdivision (h) makes revocation mandatory if the court finds a lifetime parolee has violated parole, requiring a report in the case of lifetime parolees is not absurd or pointless. While the court cannot dismiss the petition, it is conceivable that the contents of the report could persuade the district attorney to withdraw the petition. The report also includes other background information that might assist in the trial court's determination whether parole was violated.

 

 The full opinion is available on the court's website here: https://www.courts.ca.gov/opinions/documents/A159914.PDF

People v. Jenkins (2021) 70 Cal.App.5th 924 (10/25/21 ): Trial Court erred by not issuing an order to show cause

 A big Thank You and shout out to Central California Appellate Program (CCAP) for their regular Case summaries efforts. Central California Appellate Program (CCAP) is a nonprofit law office, created pursuant to California Rules of Court, rule 8.300(e), serving the Third and Fifth District Courts of Appeal (external links), and dedicated to improving the quality of indigent representation in criminal, juvenile, dependency and mental health appeals. 

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This posting is specific to Penal Code section 1170.95 petition. As a quick review: This statute states that if you have a felony murder conviction under the old law but if tried under the new law, a jury or judge would not have convicted you, then you can petition the court for resentencing.

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People v. Jenkins (2021) 70 Cal.App.5th 924 , District: 4 DCA , Division: 2 , Case #: E075886 

Opinion Date: 10/25/21

 Case Holding:  

Trial court erred by summarily denying Penal Code section 1170.95 petition without issuing an order to show cause because the petition stated a prima facie case for relief and the record of conviction does not refute the prima facie showing. In 2002, a jury convicted Jenkins of second degree murder and kidnapping. The jury also found true a witness-killing special circumstance, which required the jury to find an intent to kill. The trial court struck the special circumstance finding because the jury was only supposed to return a finding if it found Jenkins guilty of first degree murder. 

The Court of Appeal affirmed. In 2019, Jenkins’s section 1170.95 petition was summarily denied. Jenkins appealed. Held: Reversed and remanded with directions to issue an order to show cause. In conducting the prima facie review of a section 1170.95 petition, the court takes the petitioner’s factual allegations as true, unless the record of conviction contains facts refuting them. Jenkins’s petition contained the required factual allegations to make a prima facie showing that he was entitled to relief. The Court of Appeal here reviewed the record of conviction and concluded it does not exclude the possibility that the jury convicted Jenkins under the natural and probable consequences theory. 

Although the sentencing court implicitly found Jenkins acted with intent to kill when applying Penal Code section 654 (and the Court of Appeal determined this finding was supported by substantial evidence on direct appeal), this does not preclude relief because the finding was made by a preponderance of the evidence, not beyond a reasonable doubt. Additionally, the witness-killing special circumstance does not preclude relief because the trial court struck the finding. 

Finally, the jury instruction on the natural and probable consequences doctrine erroneously identified murder as the target offense. But a later paragraph of the instruction told the jurors they did not have to agree unanimously on the target offense, so the instruction as a whole did not necessarily show Jenkins was convicted on a murder theory that is still valid. 

 The full opinion is available on the court's website here: https://www.courts.ca.gov/opinions/documents/E075886.PDF 

 

A big THANK YOU to CCAP  for summarizing the Jenkins case.