In re NICHOLAS TORRES



















Filed 7/15/10















>CERTIFIED FOR PUBLICATION

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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
TWO






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In re NICHOLAS TORRES on Habeas Corpus.

B221187 (Los Angeles County Super. Ct. No. PV000319)

ORIGINAL PROCEEDINGS.
Petition for writ of habeas corpus
granted.

Randy S. Kravis and Bruce Zucker for Petitioner.

Edmond G. Brown, Jr., Attorney General, Julie L. Garland,
Assistant Attorney General, Anya M. Binsacca and Amanda Lloyd, Deputy Attorneys
General for Respondent.











INTRODUCTION

Penal Code
section 3001, subdivision (a)[1]
provides that a person who has been released on parole for five years, and has
been on parole continuously for three years since release from confinement,
shall be discharged within 30 days, unless it is decided for good cause, that
the person will be retained on parole.

Nicholas Torres (petitioner) was
released to serve a five-year parole term in November 2005. Torres was on parole continuously for three
years. In December 2008, during the
30-day review period when the Board of Parole Hearings (Board) was required to
determine whether to retain petitioner on parole, petitioner was returned to
custody on a parole violation charge.
The Department of Corrections and
Rehabilitation (Department) did not recommend that petitioner be retained
on parole, and the Board did not retain petitioner on parole, during the 30-day
review period.

The Board
revoked petitioner's parole in February 2009 after concluding that he had
violated a condition of his parole, and retained him on parole in March
2009. Petitioner filed a petition for
habeas corpus, arguing that that under section 3001(a), his parole term had
expired by operation of law in December 2008.
Therefore, according to petitioner, the Board had no jurisdiction to
revoke his parole in February 2009 and retain him on parole in March 2009. We issued an order to show cause and provided
the parties with the opportunity to brief and argue the matter.

We grant
the petition. Because petitioner was
continuously on parole for three years since release from confinement, pursuant
to section 3001(a), the Board was required to retain petitioner on parole
during the 30-day review period following the three years of continuous
parole. The Board's failure to retain
petitioner during this 30-day review period resulted in the expiration of
petitioner's parole by operation of law notwithstanding petitioner's return to
custody during that period. Because
petitioner's parole expired in December 2008, we conclude that the Board did
not have jurisdiction to revoke petitioner's parole in February 2009 and retain
him on parole in March 2009.

BACKGROUND

On October 16, 2003, petitioner pled
guilty to one count of committing a lewd or lascivious act upon a child (§ 288,
subd. (a)). The superior court sentenced
him to three years in state prison. On November 22, 2005, petitioner was
released to serve a five-year parole term. >[2]

In October
2007, petitioner was returned to custody and charged with failing to register
as a sex offender. On November 6, 2007, the Board found
that petitioner had failed to register as a sex offender, revoked petitioner's
parole, and ordered him to serve a term of seven months in custody. Petitioner served the seven months and on April 29, 2008, petitioner was again
released on parole.

On July 7, 2008, petitioner filed a
petition for writ of habeas corpus in the superior court challenging the
Board's November 6, 2007
decision revoking his parole. Petitioner
argued that the Board violated his right to due process when it denied him the
opportunity to call a witness from the Ventura County Sheriff's Department who
could testify that petitioner had in fact registered as a sex offender.

On November 18, 2008, the superior
court ruled that the Board should have permitted petitioner the opportunity to
call the witness who could testify about his compliance with the sex offender
registration requirements, and granted his petition for writ of habeas
corpus. The superior court vacated the
Board's November 6, 2007
decision revoking petitioner's parole and ordered the Board to conduct a new
revocation hearing concerning the October 2007 charge within 30 days of the
court's order.

On December 11, 2008, Curtis Knecht, a
clinician at a center where petitioner was attending sex offender counseling,
notified petitioner's parole officer that he had discharged petitioner from sex
offender group therapy. According to
Knecht, petitioner was not actively participating in therapy and was
demonstrating disruptive behavior during therapy. On December
16, 2008, petitioner was returned to custody and charged with
failing â€