Our office receives many calls from family and spouses of folks in prison who may be eligible for a Youth Offender Parole Hearing. The family member or spouse is aware that the loved one was a juvenile or under 26 at the time of the crime and was sentenced to 30 years or more (even life without the possibility of parole (LWOP)), so they believe those two facts alone qualify one for such a hearing.
About This Article Briefly: There are five situations that can disqualify a person from a Youth Offender Parole Hearing, as well as prudent steps one can take if one believes he or she should be granted such a hearing or the sentence imposed was unconstitutional. This article covers these exceptions and steps.
Some callers also assume that if the person is afforded a hearing, he or she will be granted parole and released, which is not true.
There is quite a bit that one must consider to confirm that a prisoner is indeed eligible for a Youth Offender Parole Hearing, but most of these disqualifying criteria do not or do not usually apply. Nonetheless, one must consider each, just in case. The following is a list of offenders who are not qualified for such a hearing (but who may still be eligible for a Franklin Hearing):
- Those sentenced to life and convicted under the “One Strike” sex offense law (Penal Code § 667.61);
- Those convicted and sentenced under Penal Code § 667(b – i) or § 1170.12 on a second or third strike under California’s Three Strikes Law, based on a prior conviction or convictions for a serious and/or violent felony;
- Those sentenced to death;
- Those sentenced to life without the possibility of parole (LWOP) for an offense committed at age 18 or older; or
- The person committed an offense after age 26 with a finding of “malice aforethought” (i.e. first or second degree murder, attempted murder, solicitation to commit murder, conspiracy to commit murder, assault with a deadly weapon or assault likely to create great bodily injury), or that resulted in a life sentence (a conviction for violating Penal Code § 115 in custody or a CDCR write up does not matter – they are not convictions unless you went to court for such).
One does not need to request such a hearing. It will be set by the CDCR.
However, if one is told that he or she is ineligible and believes this is wrong, you or your attorney can submit a “Form to Contest Disqualification by Board of Parole Hearings as a ‘Youth Offender,’” which is available at www.cdcr.ca.gov/BOPH/YOPH.html. One can complete this form and mail it to the Board of Parole Hearings, P.O. Box 4036, Sacramento, CA 95812-4036.
If one was under 26 when he or she committed the crime(s) at issue and is truly ineligible for a Youth Offender Parole Hearing, one should consult with an attorney about filing a petition for a writ of habeas corpus (first in state court) on grounds that the sentence imposed is a violation of the Eighth Amendment prohibition on cruel and unusual punishment because the sentence is so long that that release is so many years away, i.e., 130 years, that there is no realistic chance of ever being released. In speaking to the attorney, you may become aware of other arguments that may apply specifically to your case (i.e., SB 1437, if murder was involved).
Alternatively, if one committed a crime as a juvenile (under age 18) and the judge did impose an LWOP sentence, and the person is ineligible for a Youth Offender Parole Hearing one can file a petition for resentencing to a shorter sentence under Penal Code § 1170(d)(2) (Senate Bill 9) after that inmate has served fifteen years in custody.
Lastly, if one committed a crime as a juvenile and the judge imposed an LWOP sentence and the person is ineligible for a Youth Offender Parole Hearing and SB9, one can file a petition for writ of habeas corpus on grounds that the sentence violated Miller v. Alabama (2012) 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed 2d. 407. Such a petition should be filed in state court first and later, if denied, in federal court.
For more information about youth offender parole hearings and Franklin Hearings, please click on the following articles: