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In re Roa9/5/1991
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX.
No. B052861
1991.CA.40439 ; 1 Cal. App. 4th 724; 3 Cal. Rptr. 2d 1
Decided: September 5, 1991.
IN RE PETER COLL ROA ON HABEAS CORPUS.
Superior Court of Ventura County, No. CR 18062, Steven Z. Perren, Judge.
Daniel E. Lungren, Attorney General, Richard B. Iglehart and George Williamson, Chief Assistant Attorneys General, Carol A. Greenwald and Jane Catherine Malich, Deputy Attorneys General for Appellant.
Kenneth I. Clayman, Public Defender, and Neil B. Quinn, Deputy Public Defender, for Respondent.
Opinion by Gilbert, J., with Stone S. J., P. J., and Yegan, J., concurring.
Gilbert
The People appeal from the order granting respondent Peter Coll Roa's petition for writ of habeas corpus after the trial court found that extension of respondent's parole was unlawful.
The People contend, among other things, that the superior court misconstrued Penal Code section 3001, subdivision (a). Roa was not automatically discharged from parole because of the failure to provide written notice within the same 30-day period in which the Board of Prison Terms must act to retain him on parole. We agree and reverse.
On February 20, 1989, Roa was paroled from prison after serving a term for attempted child molestation (Pen. Code, § 664/288, subd. (a)). His controlling discharge date was February 20, 1992.
On March 5, 1990, Roa's parole officer left written instructions at Roa's home address for him to report the following day. Roa failed to do so. On March 9, his parole officer wrote in her discharge review that Roa had not
attended the required parole outpatient clinic on two occasions, that a physician who said Roa's participation was minimal did not recommend discharge, that Roa had displayed "a passive-avoidant stance" toward required treatment, and that discharge appeared to be inappropriate because of the seriousness of the commitment offense.
She recommended that Roa be retained on parole for an additional year. On March 14, 1990, the Board of Prison Terms issued a written decision which extended Roa's parole for one year. On March 19, the parole officer again left written instructions at Roa's home address directing him to report the following day, but Roa again failed to appear.
At approximately 1:40 a.m. on March 21, 1990, Roa was arrested for driving under the influence of alcohol, a violation of his parole condition that he abstain from alcohol. He was released on his own recognizance. Later that day, Roa reported this arrest to the parole office and was arrested for the parole violation and a parole hold was placed on him. It is unclear whether Roa was formally notified of his parole extension at this time.
The decision of the Board of Prison Terms retaining Roa on parole is date-stamped as having been received by the local parole office on March 23, 1990. On March 26, 1990, Roa's parole officer interviewed him at the jail and filed a report in which she said that, in addition to the violations included in the discharge review, Roa had changed his residence without informing her. She noted that she had obtained an arrest report which verified that Roa had used an alcoholic beverage. She recommended that the parole hold should
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