Friday, June 8, 2018
Court of Appeal:
Finding of Suitability for Parole Forgives Prison Crime
Majority Says Man Who Committed First Degree Murder at 19, Later Found Eligible for Release, Need Not Serve Five-Year Consecutive Sentence for the Stabbing of a Guard in Prison
By a MetNews Staff Writer
An inmate who committed first degree murder in 1979 at age 19, and in 2016 was found suitable for parole, will not have to spend additional time in prison based on a later conviction for assault with a deadly weapon on a peace officer, committed when, at age 29, he attacked and nearly killed a guard with a knife, the Court of Appeal for this district has held.
The opinion was made effective immediately to avoid delay in the release of Ronald Jenson, who was sentenced to 25 years to life for the slaying, plus two years on a weapons enhancement.
Los Angeles Superior Court Judge Halim Dhanidina, sitting on assignment in Div. Three, wrote the opinion. Justice Anne Egerton dissented.
At issue was the interplay between two statutes.
Penal Code section 1170.1(c) provides:
“In the case of any person convicted of one or more felonies committed while the person is confined in the state prison...and the law either requires the terms to be served consecutively or the court imposes consecutive terms, 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.”
In 2016, the Board of Parole Hearings, at a youth offender parole hearing, found that Jenson was fit to be paroled in connection with the murder, but the California Department of Corrections and Rehabilitation decreed that he still had to serve his subsequent five-year sentence for the assault with a deadly weapon. The Office of Attorney General supported that determination.
Consecutive Term Imposed
Jenson had pled guilty to that offense and, under a plea bargain, was sentenced to the five-year term, to be served consecutively to the term for murder.
In arguing that he is entitled to a writ of habeas corpus, Jensen asserted that a more recent provision, Penal Code §3051(b)(3), enacted in 2013, prevails. In 2016, it provided:
“A person who was convicted of a controlling offense that was committed before the person had attained 23 years of age and for which the sentence is a life term of 25 years to life shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing….”
It now applies to offenses committed before the prisoner had reached the age of 25.
Under that section, Dhanidina declared, Jenson should have been released in 2016, rather than having to serve what is known as a Thompson term. (This has reference to a 1985 Court of Appeal case, In re Thompson, which says when a person is sentenced for crimes committed while in prison, “such terms shall commence from the time such person would otherwise have been released from prison.”
“Nothing in section 3051 indicates ‘release’ means release on just the controlling offense so that the prisoner can serve a Thompson term. Rather, ‘release’ plainly means ‘release from incarceration.’ Interpreting ‘release’ in this manner accords with the commonsense, plain meaning of the word.”
“[N]o windfall results to Jenson and to similarly situated persons. While the specific outcome in this case is Jenson’s release on parole, the general implication of our decision is not a wholesale release of prisoners. Our decision merely means that youth offenders who commit nonlife crimes or crimes for which malice aforethought is not an element while in prison after attaining the age of 26 are still entitled to a youth offender parole hearing and to a meaningful opportunity for release. A hearing and an opportunity. Nothing more. At that hearing, the Board will evaluate the prisoner holistically—any Thompson crimes being part of the whole. Such crimes may militate against a grant of parole….Our decision thus does not encourage bad behavior in prison. The youth offender who continues to commit crimes while incarcerated only sabotages the chance of a good outcome at his or her parole hearing. A youth offender parole hearing offers a meaningful opportunity for release. It is not a guarantee of one.”
The opinion provides:
“Jenson is ordered released on parole. His release date shall be amended to be September 9, 2016, and the days of incarceration he has served since that day shall be deducted from his parole period.”
Presiding Justice Lee Edmon joined in the opinion.
Dissenting, Egerton observed that the purpose of §1170.1(c) “is obvious and sound: to deter inmates from committing more crimes while in prison.”
That purpose, she said, can be served while still observing the requirements of §3051. To illustrate this, she offered the hypothetical of a 25-year-old who was sentenced to 80 years, who commits an assault at age 45 while in prison and is convicted and sentenced to a consecutive five-year term.
“The inmate nevertheless will receive a youth offender parole hearing 25 years after his commitment for the murder. The board may grant him parole on his life case, effectively knocking 55 years off of his sentence. But the inmate still must serve his Thompson term for the sexual assault. Read this way, consistent with their plain language, Penal Code section 1170.1, subdivision (c), and section 3051 are not inconsistent. The inmate gets a hearing after 25 years, effectuating the Legislature’s concern for youthful offenders, and the inmate still must serve his term for his in-prison crime committed as a fully grown adult, effectuating the Legislature’s purpose of deterring prison inmates from committing more crimes while in custody.”
She went on to say:
“[I]n my view, the Legislature―in enacting Penal Code section 3051―cannot have meant to give inmates who committed their controlling offense at age 25 or younger a free pass for any and all future crimes committed in prison when they cannot be considered ‘youth’ by any definition of the word, statutory or otherwise. I do not believe our Legislature intended implicitly to repeal Penal Code section 1170.1, subdivision (c), or to change the law so that a youth offender who later, at nearly 30 years of age, attacks a guard with a knife, almost killing him, does not have to serve his Thompson term for that crime.”
“Construing the two statutes in this reasonable and common sense manner consistent with their apparent purpose and the legislative intent underlying them promotes the wise policies of both leniency toward youthful offenders and the protection of inmates, guards, and other corrections staff from crimes committed in prison by fully grown men and women.”
Dhanidina and Egerton portrayed Jenson in different light.
The acting justice noted that he is 58, has not broken the law since 1989 (when he committed the stabbing), and he has not received discipline for a “serious rule violation” for a period in excess of 17 years.
Egerton pointed to the facts of the gas station slaying and noted that when Jenson was found in 2014 to be suitable for parole, Gov. Jerry Brown blocked his release, terming the killing “senseless,” and commenting:
“Mr. Jenson’s conduct in prison demonstrates an inability to control his temper and abide by the rules. He has been disciplined for serious misconduct 48 times and less serious misconduct 42 times. Ten of his serious disciplinary actions were for violent behavior including stabbing a correctional officer in the neck, attempting to stab staff, assaulting an inmate, stabbing an inmate, spitting in staff members’ faces, fighting with another inmate, and possession of inmate-manufactured weapons.”
The case is In re Jenson, 2018 S.O.S. 2915.
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