California Attorney General Opinion No. 80-418

_________________________ TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General : OPINION : No. 80-418 : of : October 1, 1980 : GEORGE DEUKMEJIAN : Attorney General : : Paul H. Dobson : Deputy Attorney General : : SUBJECT: NOTICE REQUIRED IN FIXING PAROLE DATE-The Youthful Offender Parole Board is required to provide opportunity to give the 45–day notice required by Penal Code section 290, subdivision (b), in fixing a parole date of an inmate subject to that section. The Youthful Offender Parole Board, has requested an opinion on a question which may be phrased as follows: Is the Youthful Offender Parole Board required to provide opportunity to give the 45 day notice required by Penal Code section 290, subdivision (b), in fixing the parole date of an inmate subject to that section? CONCLUSION The Youthful Offender Parole Board is required to provide opportunity to give the 45 day notice required by Penal Code section 290, subdivision (b), in fixing a parole date of an inmate subject to that section. 1 40-418 ANALYSTS Penal Code section 290 requires persons convicted of certain sex offenses to register with local authorities after being released or paroled from a place of confinement. Subdivision (b) of section 290 provides: “Any person who, after the first day of August, 1950, is discharged or paroled from a jail, prison, school, road camp, or other institution where he was confined because of the commission or attempt to commit one of the above-mentioned offenses or is released from a state hospital to which he was committed as a mentally disordered sex offender under the provisions of Article 1 (commencing with Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code shall, prior to such discharge, parole, or release, be informed of his duty to register under this section by the official in charge of the place of confinement or hospital and the official shall require the person to read and sign such form as may be required by the Department of Justice, stating that the duty of the person to register under this section has been explained to him. The official in charge of the place of confinement or hospital shall obtain the address where the person expects to reside upon his discharge, parole, or release and shall report such address to the Department of Justice. The official in charge of the place of confinement or hospital shall give one copy of the form to the person, and shall send two or, if the conviction which makes the person subject to this section is a felony conviction, shall, not later than 45 days prior to the ‘wheduled release of such person, send four copies to the Department of Justice, which, in turn, shall forward one copy to the appropriate law enforcement agency having local jurisdiction where the person expects to reside upon his discharge, parole, or release, and, if the Conviction which makes the person subject to this section is a felony conviction, one copy to the prosecuting agency which prosecuted the person and one copy to the court where he was prosecuted. All such forms shall, if the conviction which makes the person subject to this section is a felony conviction, be transmitted within such times as to be received by the local law enforcement agency, prosecuting agency and court 30 days prior to the discharged parole or release of the person.” (Emphasis added.) A “place of confinement” within the meaning of subdivision (b) would include a Youth Authority facility. (See Pen. Code, § 290, subd. (g).) In a recent opinion, 63 Ops. Cal. Atty. Gen. 393, we concluded: 2 40-418 “The Director of the Youth Authority may not keep a person who is subject to the provisions of section 290 incarcerated beyond the time which the Youthful Offender Parole Board has scheduled for his release on parole in order to meet the 45 day notice requirement of that section.” The rationale for our conclusion in that opinion was that it was the Youthful Offender Parole Board which had the responsibility for determining the parole date and not the Director. In that opinion we expressly declined to consider the propriety of the Youthful Offender Parole Board ordering the parole of a person confined to the Youth Authority on a date which would make compliance with the notice requirements of subdivision (b) of Penal Code section 290 impossible. (See 63 Ops. Cal. Atty. Gen. 393, 396, fn. 2 (1980).) This issue is presented by the instant question. Welfare and Institutions Code sections 1719, 1765 and 1766 give the Youthful Offender Parole Board discretion to determine parole and discharge dates of persons committed to the Youth Authority, Penal Code section 290 was amended in 1979 to require that the official in charge of the place of confinement shall send four copies of the notification form to the Department of Justice “not later than 45 days prior to the scheduled release of such person . . . .” (Emphasis added; Stats. 1979, ch. 944, § 8.) Thus, the Legislature has assumed that after a release date has been scheduled by some authority, it would be the duty of the official in charge of the place of confinement to make the directed notification 45 days prior to that scheduled release date. However, the statutory provision is premised on the fact that a date would be set at least 45 days in advance. Welfare and Institutions Code section 1720 provides in pertinent part: “(a) The case of each ward shall be heard by the board immediately after the case study of the ward has been completed and at such other times as is necessary to exercise the powers or duties of the board. “(b) The board shall periodically review the case of each ward for the purpose of determining whether existing orders and dispositions in individual cases should be modified or continued in force. These reviews shall be made as frequently as the board considers desirable and shall be made with respect to each ward at intervals not exceeding one year. “ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .” The Board by administrative regulation has provided that at the initial hearing, the individual ward receives a “parole consideration date.” “A parole consideration date represents, from its date of establishment, an interval of time in which a ward may reasonably and realistically be expected to achieve readiness for parole. It is not a fixed 3 40-418 term or sentence, nor is it a fixed parole released date.” (Tit. 15, Cal. Admin. Code, § 49.45;1 In re Davis (1978) 87 Cal. App. 3d 919, 923–924.) The Board determines the interval before the parole consideration date on a series of factors relating to the ward and the nature of the offense. (See tit. 15, Cal. Admin. Code, §§ 4945, 4951–4958.) We are advised by the Director of the Youth Authority and the Chairman of the Youthful Offender Parole Board that in many cases at the parole consideration hearing, it is the determination of the Board panel that the inmate (“ward”) is ready for immediate release on parole. Such a person is normally released as soon as his or her parole plans are approved by the Board. (See tit. 15, Cal. Admin. Code, § 4966.) Thus, the parole date for such *a person is scheduled less than 45 days in advance. The issue which we address is whether the notice requirement of Penal Code section 290, subdivision (b), requires that the Beard adopt a procedure which would allow compliance with those provisions. We conclude that in determining a parole date, the Board has a duty to consider the 45 day notice requirement of Penal Code section 290, subdivision (b), in cases in which that provision is applicable. The key to resolving this issue is ascertaining the legislative intent behind the 45 day notice requirement in Penal Code section 290. As the Supreme Court stated in People v. Shirokow (1980) 26 Cal. 3d 301, 306–307, “[W]e are mindful that the goal of statutory construction is ascertainment of legislative intent so that the purpose of the law may be effectuated, and we should construe a statute in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts.” The emphasized sentence of subdivision (b) of Penal Code section 290 specifies that the official in charge of the place of confinement “shall, not later than 45 days prior to the scheduled release of such person, send four copies to the Department of Justice. . . .” The use of the word “shall” evidences a legislative intent that the procedure be mandatory in the sense that it be obligatory as opposed to permissive. See People v. McGee (1977) § 19 Cal. 3d 948, 958– 959.) As we pointed out in our earlier opinion, 63 Ops. Cal. Atty. Gen. 393 (1980), It is not possible for the person in charge of the Youth Authority facility to comply with the notice requirements, unless the Youthful Offender Parole Board schedules a parole date at least 45 days in advance. A statute is to be construed so as to render it reasonable, fair and harmonious with its manifest legislative purposes “. . . and the literal meaning of its words must give way to avoid harsh results and mischievous or absurd consequences.” (County 1 These administrative regulations relate to the Youth Authority Board which was abolished by Statutes of 1979, chapter 860, section 17. The Youthful Offender Parole succeeded to and now exercises all the powers and duties granted to, exercised by and imposed upon the Youth Authority Board. (Welf. & Inst. Code, § 1725.) 4 40-418 of San Diego v. Mimi: (1978) 22 Cal. 3d 29, 36.) Several statutes which relate to the same subject, should be harmonized if possible to give effect to each. (Moyer v. Workmens Comp. Appeals Board (1973) local. 3d 222, 230.) While the wording of subdivision (b) places the obligation to give notice on “the official in charge of the place of confinement,” the legislative purpose would be completely frustrated in the case of a person committed to the Youth Authority, if the Youthful Offender Parole Board did not have a duty to take into account the requirement in setting a parole date. Reading the 45 day notice requirement of Penal Code section 290, subdivision (b) in harmony with statutory authority of the Board set forth in Welfare and Institutions Code section 1719, 1765 and 1766, we conclude that in cases where the notice requirement is applicable, the Board has a duty to provide the opportunity to give the 45 days notice required by Penal Code section 290, subdivision (b). The question remains, how the Board is to implement the requirement of Penal Code section 290, subdivision (b). The section does not purport to extend the period a person is to be confined by 45 days. The Board’s “parole consideration date” is not a date fixing the end or even the tentative end of a sentence or term. (In re Davis, supra, 87 Cal. App. 3d 919.) The parole consideration date is simply a time established by the Board at which the inmate “may reasonably and realistically be expected to achieve readiness for parole.” (Tit. 15, Cal. Admin. Code, § 4945.) In the case of an inmate to whom the notice requirement of Penal Code section 290, subdivision (b) applies, the definitions of the parole consideration date must be modified, in such a case by virtue of that statutory notice requirement, the parole consideration date is a date at least 45 days prior to the date the inmate “may reasonably and realistically be expected to achieve readiness for parole.2 The manner by which the Board determines the parole consideration date in such cases is a matter within the discretion of the Board. Finally, we again point out and emphasize that the 45 day notice requirement of Penal Code section 290 is directed to the person in charge of the place of confinement, which in the case of an inmate of a Youth Authority facility would be the Director of the Youth Authority or an official appointed by the Director. While the Youthful Offender Parole Board in setting a parole date is required to provide the opportunity for the Director to comply with the 45 day notice requirement, once the Board does so it has fulfilled its duty. The failure of the Youth Authority to give the appropriate notice would neither invalidate the parole order of the Board nor require the Board to redetermine the parole date. ***** 2 We note that inmate must he released at the expiration of his or her statutory maximum period of physical confinement. (Welf. & Inst. Code, § 1766.) If the Board has not scheduled an earlier release date, Penal Code section 290 notice 1% to be given 45 days prior to that date. 5 40-418