ORDER GRANTING RELIEF BY WAY OF HABEAS CORPUS
Pеtitioner, charged with possession of heroin for sale, was committed, prior to trial, for observation at thе California Rehabilitation Center from which he escaped one month later. He was rearrested in Novеmber, 1965, and charged with a second violation of California Health and Safety Code § 11500.5. He again escaрed, and when recaptured pleaded guilty to the second possession charge as well as to the еscape charges which had been brought. On March 22, 1966, petitioner was given concurrent terms for these offenses. On July 22, he was given another, consecutive, sentence for the original heroin charge.
On August 3, 1966, petitioner received a “Notice of Legal Status” which set his minimum eligible parole date (“M.E. P.D.”) at three years and four months. This date was set by the Adult Authority which at that time deemed Penal Code § 3049
The state relies on language to the effect that the prohibition of ex post facto enactments applies prinсipally to legislative bodies, does not apply to inconsistent judicial interpretations of statutes, and shоuld therefore not be imposed upon interpretations of statutes by administrative agencies, Frank v. Mangum,
The crux of the instant case is that the State would confine Bouie to the abovе quoted language. It is said that petitioner herein at all times knew that his conduct was criminal, and that the reinterpretatiоn here challenged affected only the nature of the punishment to which he would be subject. Thus, it is argued that though the Supreme Court in Bouie spoke of any “unforeseeable judicial enlargement of a criminal statute” as oрerating like an ex post facto law, the decision itself should only be applied where the defendant’s conduct, without the reinterpretation of the statute, would not be deemed improper or immoral. United States ex rel. Almeida v. Rundle, D.C.,
The ex post facto prohibition contained in Art. 1, § 9, cl. 3 of the United States Constitution has long been held to bar imposition by a legislature of a greater penalty upon a defendant than was provided for by the law at the time оf his offense. Both federal and state courts have determined that increases in parole requirements by lеgislative enactment are subject to this variation of the ex post facto principle. Lindsey v. Washington,
It is worth mentioning that it is not only the dеfendant who should be apprised of the full consequences of
Accordingly, it is hereby ordered that the named defendant herein, and the California Adult Authority, reinstate petitioner’s Minimum Eligible Parole Date to that which was indicated in the “Notice of Legal Status” sent to petitioner on August 3, 1966, with appropriate credit for time served. Since petitioner began serving his sentences on April 12, 1966, he is thus to be deemed to have been eligible for a hearing on parole eligibility on or before August 12, 1969. Named defendant аnd the California Adult Authority are, in good faith, to advance petitioner’s status for parole as if this original heаring had occurred on or before the above mentioned date.
Notes
. “[A]ny prisoner .....' * whose minimum term of imprisonment is mоre than one year, may be paroled at any time after the expiration of one-third of the minimum term.”
. “[Any violator of this section] shall not be eligible for release * * * on parole * * * until he has served not less than two and one-half years in prison.”