Lifer Granted Elderly Parole Need Not Serve Sentence For In-Prison Conduct

In re Hoze (Cal. Ct. App., Feb. 25, 2021, No. A158399) 2021 WL 732072, at *1

Summary: Johnnie Hoze was 67 years old and had served nearly four decades in state prison on an indeterminate life sentence when 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 ssection 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. The Court of Appeal  agreed 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).


Hoze began serving an indeterminate life sentence in 1980 and 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, 218 Cal.Rptr. 192 (Thompson); § 1170.1(c).)

In 2018, the Board granted Hoze parole under the Elderly Parole Program. The  parole decision became final on September 4, 2018 but  Hoze was not released immediately because the Board concluded that his parole grant did not excuse him from serving his Thompson terms.

Elderly Parole

The Elderly Parole Program originated in 2014 as part of a court-ordered remedy for the state’s failure to provide adequate medical care and mental health care to prison inmates as a result of overcrowding, in violation of the Eighth Amendment. (See Brown v. Plata (2011) 563 U.S. 493, 499-500, 131 S.Ct. 1910, 179 L.Ed.2d 969; see also In re Butler (2018) 4 Cal.5th 728, 736-737, 230 Cal.Rptr.3d 736, 413 P.3d 1178 (Butler).)

A federal court ordered the state to implement what became the Elderly Parole Program. In 2018, the Legislature codified the program in section 3055. (Stats. 2017, ch. 676, § 3 (Assem. Bill No. 1448 (2017 Reg. Sess.)).) Its “main purpose was to curb rising medical costs of the geriatric inmate population and to provide a ‘compassionate’ release for those elderly individuals.” (People v. Contreras (2018) 4 Cal.5th 349, 374-375, 229 Cal.Rptr.3d 249, 411 P.3d 445.)

Originally, the program was intended to “review[ ] the parole suitability of any inmate who is 60 years of age or older and has served a minimum of 25 years of continuous incarceration on his or her current sentence, serving either a determinate or indeterminate sentence.” (Stats. 2017, ch. 676, § 3 (Assem. Bill No. 1448 (2017 Reg. Sess.)).) Effective January 1, 2021, the Legislature expanded the program to inmates who are at least 50 years of age and have served a minimum of 20 years of continuous incarceration on their current sentence. (See Stats. 2020, ch. 334, § 2 (Assem. Bill No. 3234 (2020 Reg. Sess.)); § 3055, subd. (a).)

Under Elderly Parole, Board gives special consideration to “whether age, time served, and diminished physical condition, if any, have reduced the elderly inmate’s risk for future violence.” (§ 3055, subd. (c).) If the Board finds the inmate suitable for parole, it is required to “release the individual on parole as provided in Section 3041.” (§ 3055, subd. (e).) Section 3041, in turn, directs that “[u]pon a grant of parole, the inmate shall be released subject to all applicable review periods” – referring to the period in which the governor may reverse a grant of parole or request further review. (See §§ 3041, subd. (a)(4), 3041.1, 3041.2.)

The Board required Hoze to serve his Thompson terms before being released. Over three decades before the enactment of section 3055, Thompson held that section 1170.1(c) requires an inmate to begin serving a consecutive term for an in-prison felony on the date the inmate otherwise would have been released on parole. (Thompson, supra, 172 Cal.App.3d at pp. 260-261, 263, 218 Cal.Rptr. 192; § 1170.1(c) [providing that for in-prison felonies, “the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison”]; see also In re Coleman (2015) 236 Cal.App.4th 1013, 1022, 186 Cal.Rptr.3d 922 [“Commencing the consecutive sentence for the custodial offense on the date the prisoner otherwise actually would have been released on parole is consistent with the Legislature’s intent to punish and deter criminality in prison.”].)


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.

Elderly Parole Was Modeled after Youth Offender Parole Program

 The Legislature apparently looked to the Youth Offender Parole Program (§ 3051) as a model for the Elderly Parole Program (§ 3055). Both programs  authorize early release from incarceration for the targeted subset of inmates who have served a specified number of years in prison and are found suitable for parole. (See § 3051, subd. (a), (b); § 3055, subd. (a).) Both programs leave prisoners’ existing sentences in place but cap the number of years that a prisoner may be imprisoned before becoming eligible for parole.

The Legislature amended sections 3041 and 3046 to add references to elderly parolees alongside existing references to youthful offenders. (See § 3041, subd. (a)(4) [“Upon a grant of parole, the inmate shall be released subject to all applicable review periods. However, an inmate shall not be released before reaching his or her minimum eligible parole date as set pursuant to Section 3046 unless the inmate is eligible for earlier release pursuant to his or her youth offender parole eligibility date or elderly parole eligible date.”], § 3046, subd. (c) [“an inmate found suitable for parole pursuant to a youth offender parole hearing as described in Section 3051 or an elderly parole hearing as described in Section 3055 shall be paroled regardless of the manner in which the board set release dates pursuant to subdivision (a) of Section 3041”], ; Stats. 2017, ch. 676, §§ 1-2 (Assem. Bill No. 1448 (2017 Reg. Sess.)).)

Both programs list specific types of offenses that are excluded from the program; neither specifies section 1170.1(c) among the exclusions. Notably, the Legislature excluded from both programs two mandatory sentencing statutes that, like section 1170.1(c), require the prisoner to begin serving a consecutive term when the prisoner “would otherwise have been released from prison.” (§§ 1170.12, subd. (c)(2)(B), 667, subd. (e)(2)(B); see § 3051, subd. (h); § 3055, subd. (g).) The Court must assume the Legislature intentionally omitted section 1170.1(c) from the list of excluded sentencing statutes. (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230, 32 Cal.Rptr.2d 19, 876 P.2d 505 [“Under the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary.”]

Both  statutes use the same language and procedure for releasing a prisoner upon a grant of parole. If the Board decides to grant parole, it “shall release the individual on parole as provided in Section 3041.” (§ 3051, subd. (d); § 3055, subd. (e).) Jenson construed the plain meaning of the word “release” in section 3051 to mean release from prison. (See Jenson, 24 Cal.App.5th at p. 283, 233 Cal.Rptr.3d 868; see also Williams, supra, 24 Cal.App.5th at p. 801, 234 Cal.Rptr.3d 600.) We see no indication that the Legislature intended “release” to have a different meaning for purposes of section 3055; to the contrary, section 3055, subdivision (b)(1) expressly defines “ ‘elderly parole eligible date’ ” to mean the date an elderly offender is eligible to be “released from prison.”  The Legislature understood Jenson’s construction of the word “release” and intended it to have the same meaning in both statutes. The Legislature intended to authorize the Board to supersede Thompson terms pursuant to section 1170.1(c) when it grants parole to elderly prisoners under section 3055, consistent with the similar Youth Offender Parole Program

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