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Name: In re Stone
Case #: B229584
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 07/19/2011

Court erroneously orders defendant released from parole where Board of Prison Hearings (BPH) fails to provide timely notice of retention decision. Petitioner was released on three years parole after serving time for threatening his wife (Pen. Code, §422). A parole term prohibited him from contacting her. The BPH rejected his parole officer’s recommendation for early release from parole, but Stone did not receive notice of BPH’s decision to retain him on parole. He was arrested for sending threatening text messages to his wife and returned to custody. He petitioned for habeas corpus, claiming BPH’s failure to inform him he was retained on parole rendered the retention decision invalid and by operation of law, he was released on parole prior to time he threatened his wife. The lower court, finding the failure to give notice a violation of due process, determined BPH lacked jurisdiction to revoke parole. This was error. Penal Code section 3001, subdivision (a) provides for discharge from parole within 30 days after the first year of continuous parole unless BPH notifies the defendant of its intention to retain the prisoner on parole. However, the validity of BPH’s retention decision is not ified by the failure to give notice – the Board retains jurisdiction for the parole period which was initially ordered. “The notice required is intended to effectuate the parolee’s right to appeal the retention decision and . . . its denial will not support” the parolee’s immediate release. The proper remedy was to direct CDC to vacate its order of revocation and proceed in accordance with due process notice.