1

Filed 2/2 5 / 21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re JOHNNIE HOZE on Habeas
Corpus. A 158399

( Marin County Super. Ct. No.

SC207139A

)

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)

. 1 Befo re he could be released, however,

the Board determined that Hoze must serve additional sentences for two

offenses he committed in prison

, consistent with section 1 1 7 0 .1, subd ivision

(c) (hereafter, section 1170.1(c))

. Hoze filed a habeas corpus petition alleging

he was entitled to immediate release under the Elderly Parole Program

. T he

trial court granted the petition. W e agree with the trial cour t: Hoze is not

required to serve his sentences for in

- prison offenses becaus e a grant of

parole under section 3055 supersedes section 1 1 7 0 .1 (c)

. We affirm.

1 Undesignated statutory references are to the Penal Code.2 B ACKGROUND

A.

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 violen ce. While in carcerated , 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

yea r for the second. (See In re Thompson (1985) 172 Cal.App.3d 256

( Thompson ) ; § 1170.1 ( c) .)

In 2018, the B oard granted Hoze parole under the Elderly Parole

Program. The B oard 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 trainin g and self

help programs including Alcoholics Anonymous and Narcotics Anonymous,

and he received positive work reports from prison staff. The B oard 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 t he parole decision became final on September 4, 2018

, Hoze

was not released immediately because the Board conclud ed that his parole

grant did not excuse h im from serving his Thompson terms.3 B.

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;

see also In re Butler (2018) 4 Cal.5th 728, 736

- 737 ( Butler ). ) To further

reduce the prison population, a federal court ordered the state to implement

what became the Elderly Parole Program. In 20 1 8, t he Legislatur e c odifi ed

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.)

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 incarcerat ion 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 expand ed 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).)

Wh en considering the release of an inmate , the 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

re quired 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,4

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

. )

Despite being found suitable for parole, 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; § 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 [ “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.” ].)

D ISCUSSION

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 li ght 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.5

We hold that a parole grant pursuant to section 3055 overrides section

1170.1 (c) . Hoze is not required to serve his Thompson terms

.

A.

The Legislature appeared to model the Elderly Parole Program on a

parole program for y outh o ffender s
, codified at section 3051

. Several courts

of appeal have concluded that the Youth Offender Parole P rogram supersedes

the Thompson requirement. (See In re Trejo (2017) 10 Cal.App.5th 972, 984

( Trejo ); In re Williams (2018) 24 Cal.App.5th 794, 799

- 804 ( Williams ); In re

Jenson (2018) 24 Cal.App.5th 266, 278

- 283 ( Jenson ).) We will briefly

summarize the youth program legislation and the relevant cases.

When originally enacted, the Youth Offender Parole P rogram was

intended to provide an opportunity for parole to prisoners who had committed

their offenses as juveniles and had served between 15 and 25 years in prison

,
depending on the offense . ( People v. Franklin (2016) 63 Cal.4th 261, 277

( Franklin ) ; Stat s. 2013, ch. 312, § 4 ( Sen. Bill No. 260 (Reg. Sess. 2013))

. )

The program was designed to bring juvenile sentencing into conformity with

a series of cases holding that it violates the Eighth Amendment’s prohibition

o n cruel and unusual punishment to sentence a juvenile offender to death

, or

to life without parole for a nonhomicide crime . ( Franklin, supra, 63 Cal.4th

at p. 277 ; see also Graham v. Florida ( 2010) 560 U.S. 48 , 74

- 75 ; Roper v.

Sim m ons (2005) 543 U.S. 551 , 573

- 574 ; People v. Caballero (2012) 55 Cal .4th

262 , 268 .) The Legislature has twice amended section 3051 to ex tend

eligibility beyond juvenil e offenders

— in 2015, it extended eligibility to

offenders under age 2 4 (Stats. 2015, ch. 471

, § 1 (Sen. Bill No. 261 (Reg. Sess.

2015)) ) , then in 2017 to offenders under age 2 6 . ( Stats. 2017, ch. 675, § 1

(Assem. Bill No. 1308 (2017 Reg. Sess.)) .)6

For youth offenders granted parole under section 3051 , the statute

overrides their original , statutori ly mandated sentences. As our Supreme

Court explained in Franklin , section 3051 effectuates “ the Legislature’s

determination that inmates such as Franklin, despite the mandatory

character of their original sentences, are now entitled to a youth

offender parole hearing during their 25th year of incarceration.” ( Franklin

,

supra, 63 Cal.4th at p. 279.) “[S]ection 3051 has changed the manner in

which the juvenile offender’s original sentence operates by capping the

number of years that he or she ma y be imprisoned before becoming eligible

for release on parole. The Legislature has effected this change by operation

of law, with no additional resentencin g procedure required.” ( Id. at pp. 278

-

279.)

In 2017, another division of this court held that a parole grant under

section 3051 overrides Thompson terms for inmates who committed in

- prison

offenses as juvenile s

. ( Trejo

, supra
, 10 Cal.App.5th at p. 984 .) After a

tho rough analysis of the interplay between section 3051 and various

sentencing laws , the Trejo court concluded that the Youth Offender Parole

Program necessarily supersedes the Thompson requirement, as it does other

sentencing requirements not expressly excluded by section 3051

. ( Id . at pp.

981

- 990.)

In 2018, two court s held that paroled youth offender s are entitled to

release even if t he y received additional sentences for in

- prison crimes as

adult s ; both courts agreed with and extended Trejo ’s analysis . (See Williams

,

supra
, 24 Cal.App.5th at pp. 799

- 804; Jenson

, supra
, 24 Cal.App.5th at pp.

278

- 283.) Notably, Jens o n held that the plain meaning of the term “release”

in section 3051 means release from incarceration, not release from

punishment for some sentences but continued incarceration for Thompson7

terms. ( Jens o n
, sup r a
, 24 Cal.App.5th at p. 283 ; see also Williams , 24

Cal.App.5th at p. 801 .)

The Legislature enacted the E lderly P arole P rogram in 2017, several

months after Trejo was decided. ( Stats. 2017, ch. 676, § 3 (Assem. Bill No.

1448 (2017 Reg. Sess.)) .) Since Trejo , and as recently as last year, the

Legislature has amended both section 3055 and section 3051 without

indicating any disagreement with Trejo

, Williams , or Jens o n ; indeed, it has

broadened both programs to apply to more prisoners

. ( See Stats. 2020, ch.

334, § 2 (Assem. Bill No. 3234 (2020 Reg. Sess.)); Stats. 2017, ch. 675, § 1

(Assem. Bill No. 1308 (2017 Reg. Sess.)); Stats. 2017, ch. 684, § 1.5 (Sen. Bill

No. 394 (2017 Reg. Sess.))

. ) We assume the Legislature was aware of, and

agreed with

, th e judicial construction of the youth parole statute . ( Jens o n
,

supra
, 24 Cal.App.5 th at p p . 280

- 281

. )

We now turn to the legislative intent of the e lderly p arole statute

.

B.

Statutory construction require s our independent review. ( People v.

Tran (2015) 61 Cal.4 th 1160, 1166 .) In construing section 3055, o ur task is to

ascertain the Legislature’s intent, starting with the statute’s words and

giving those words their ordinary meaning. ( Moran v. Murtaugh Miller

Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 783 ( Moran ).) We consider not

only the language of the entire statutory scheme but also the text of related

statutes, and we harmonize the m if possible. ( People v. Gonzalez (2017) 2

Cal.5th 1138, 1141.)

Two rules are especially important in this case

. First, w e presume that

the Legislature “ ‘ was aware of existing related laws ’ ” when it enacted

section 3055 and “that it ‘intended to maintain a consistent body of rules.’ ”

( In re R.G. (2019) 35 Cal.App.5th 141, 146 ( R.G. ).) Second, w he n “ ‘8

legislation has been judicially construed and a subsequent statute on the

same or an analogous subject uses identical or substantially similar

language, we may presume that the Legislature intended the same

construction, unless a contrary intent clearly appears. ’ ” ( Mora n
, supra
, 40

Cal.4th at p. 785, quoting Estate of Griswold (2001) 25 Cal.4th 904, 915

- 916;

see also R.G.

, supra
, 35 Cal.App.5th at p. 146.)

These rules apply here. The Legislature apparently looked to the

Youth Offender Parole Program (§ 3051) as a model for the E lderly Parole

P rogram (§ 3055)

. Despite some differences that logically reflect each

program’s respective focus on the inmate’s young age at the time of the crime

(§ 3051, subds. (a)(1), (a) (2)(B); § 4801, subd. (c)) or the inmate’s old age after

serving a long sentence (§ 3055, subds. (a), (c)), b oth programs address a

similar subject: they authori ze 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 parol e

. ( Se e § 3051 , subd. (a) , (b) ; § 3055,

subd. (a).) Both programs do so by the same mechanism: they leav e

prisoners’ existing sentences in place but cap the number of years that a

prisoner may be imprisoned before becoming eligible for parole . (See

Franklin

, supra , 63 Cal.4th at pp. 278

- 279; see also Butler

, supra
, 4 Cal.5th

at p. 740 .) The mechanism allow s the Board to release the prisoner on

parole , super s eding stat utorily mandated sentences, without any

resentencing procedure. (See Franklin

, sup r a , 63 Cal.4 th at pp. 278

- 279.)

Both programs modify the Board’s existing parole review process with

additional factors tailored to each program. ( See § 3051 , subd. (f) (1); § 4801,

subd. (c) ; § 3055 , subd. (c).) In both programs, if the Board does not grant

parole, it must schedule a subsequent parole hearing unless the prisoner is

released earlier

. ( See § 3051 , subd. (g) ; § 3055 , subd. (f).) Both programs set9

schedules for the Board to complete parole reviews of eligible prisoners. (See

§ 3051 , subd. (i) ; § 3051.1 ; § 3055 , subd. (j).)

Further, the Legislature amended sections 30 41 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 .”], italics added; § 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”], italics added; Stats. 2017, ch.

676

, §§ 1

- 2 (A ssem

. B ill No

. 1448 (2017 Reg. Sess.) ) .)

Of particular interest to us, the programs follow the same approach in

the ways they address

— and don’t address

— the statu torily mandated

sentences that the Board is authorized to override. Neither program lists the

sentencin g statutes that are affected by a parole grant

, but both programs

necessarily include determinate as well as indeterminate sentences. (See

Trejo

, supra
, 10 Cal.App.5 th at pp. 98 4

- 986 ; § 3051, subd. (b)(1); § 3055, subd.

(a).) Both programs list specific types of offenses that are excluded from the

program ; n either specifies section 1 1 70.1 (c) among the exclusions

. (See §

3051

, subd. (h); § 3055

, subds. (g), (h) ; Trejo

, supra
, 10 Cal.App.5 th at pp.

98 2, 985; Williams

, supra , 24 Cal.App.5th at pp. 800

- 801 .) Notably, the

Legislature excluded from both program s two mandat ory sentencing statutes

that, like section 1 1 70.1 (c), require the prisoner to begin serving a10

consecutive term when the prisoner “ would otherwise have been released

from prison .” ( §§ 1170.12, subd. (c)(2)(B), 667, subd. (e)(2)(B) ; s ee § 3051,

subd. (h) ; § 3055, subd. (g) .) We 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 [“ 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 le gislative intent to the contrary.”]; see

also Williams

, supra , 24 Cal.App.5th at pp. 800

- 801.)

Finally, both statutes use the same language and procedure for

releas ing 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.”

( § 305 1, subd. (d); § 3055, subd. (e) .) Jens o n 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 ; see also Williams

, supra
, 24 Cal.App.5th at p. 801 .)

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 .” ( Italics

added.) M oreover, since Jenson

, t he Legislature ha s amended both statutes

without suggesting any disagreement. ( Stats. 2019, ch. 577, § 2 (Assem. Bill

No. 965 (Reg. Sess. 2019)) [amending § 3051 ] ; Stats. 2020, ch. 334, § 2

(Assem. Bill No. 3234 (2020 Reg. Sess.)) [amending § 3055].) In dee d, the

Legislature expanded the E lderly Parole P rogram to allow the release of

more prisoners. ( Stats. 2020, ch. 334, § 2 (Assem. Bill No. 3234 (2020 Reg.

Sess.)) [lowering the eligibility threshold to 50 years or older and 20 years of

incarceration]; § 3 055, subd. (a).].) We assume the Legislature understood11

Jens o n ’s construction of the word “release” and intended it to have the same

meaning in both statutes. (See R.G

. , supra
, 35 Cal.App.5th at p. 151 .)

In short, the Legislature intended to authorize the Board to supersede

Thompson terms pursuant to section 1 170 .1 (c) when it grants parole to

elderly prisoners under section 3055, consistent with the similar Y outh

Offender P arole P rogram

. Following the most recent amendments to the

statutes, t he Board now agrees this conclusion is reasonable. We need not

address its earlier arguments that differences in the statutes suggest a

contrary intent. In any case, we have considered those arguments and reject

them.

D ISPOSITION

The trial court’s order granting Hoze’s petition for a writ of habeas

corpus and directing his release is affirmed.12 _______________________ BURNS, J.

We concur:

____________________________ NEEDHAM , ACTING P.J.

____________________________ SELIGMAN , J. *

A158399

* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.13

Marin County Superior Court, Case No. SC207139A

Trial Judge: The Honorabl e Kelly V. Simmons

Law Office of Marc Eric Norton, Marc Eric Norton, for Petitioner.

Xavier Becerra, Attorney General, Phillip J. Lindsay, Senior Assistant
Attorney General, Sara J. Romano, Supervising Deputy Attorney General,
and Jennifer G. Ross, Deputy Attorney General, for Respondent

- Appellant.