Opinion
C089974
02-14-2022
In re ANTHONY FLORES on Habeas Corpus.
NOT TO BE PUBLISHED
Review denied 6/15/22; reposted with Supreme Court order and statement
Super. Ct. No. 18HC00046
MAURO, ACTING P. J.
"In 2016, voters approved Proposition 57, the 'Public Safety and Rehabilitation Act of 2016.' Proposition 57 amended the California Constitution to grant early parole consideration to persons convicted of a nonviolent felony offense. (Cal. Const., art. I, § 32, subd. (a)(1).)" (In re Kavanaugh (2021) 61 Cal.App.5th 320, 334 (Kavanaugh).) Proposition 57 also directed the Department of Corrections and Rehabilitation (CDCR) to adopt regulations in furtherance of its provisions. (Cal. Const., art. I, § 32, subd. (b); Kavanaugh at p. 334.) CDCR promulgated separate regulations for prisoners serving determinate and indeterminate sentences. (Kavanaugh, at pp. 334, 336 & fn. 3; see also Pen. Code, § 3040 et seq. and associated regulations [applicable to indeterminately sentenced prisoners]; Cal. Code Regs., tit. 15, §§ 2449.1, 2449.3-2449.7, 3490-3493 [applicable to determinately sentenced prisoners].) The regulations for prisoners serving indeterminate sentences are not at issue in this case.
The CDCR regulations promulgated for prisoners serving determinate sentences (the determinate regulations) provide for parole consideration when the determinately sentenced prisoner has served the full term for the primary offense. The prisoner has the opportunity to submit a written statement to the Board of Parole Hearings (Board), but the prisoner does not have the right to an in-person hearing. A hearing officer reviews the records and submissions and approves or denies parole in a written decision with reasons stated. If parole is denied, the prisoner may request review of the decision and file a written description of why the decision was incorrect. A separate hearing officer considers the request for review. (See Kavanaugh, supra, 61 Cal.App.5th at pp. 336-337.)
This is only a brief summary of the relevant regulations.
Anthony Flores, a prisoner serving a determinate term for nonviolent offenses, was denied parole under the determinate regulations. Because there is no right to an in-person parole hearing under the determinate regulations, Flores describes the process as a paper review. He petitioned the trial court for a writ of habeas corpus. The trial court granted the petition, concluding CDCR's parole determination did not comport with Proposition 57 and Flores's due process rights. The trial court ordered CDCR to grant Flores an in-person parole suitability hearing. Aware that the Board had issued its parole determination under emergency regulations subsequently superseded by new regulations not addressed by the trial court, the trial court nevertheless ordered CDCR to promulgate new regulations to ensure proper parole suitability determinations.
CDCR appealed to this court from the trial court's order, arguing the determinate regulations comport with due process and other applicable law and the Board's parole determination is supported by sufficient evidence.
After initial briefing was completed in this appeal, the Court of Appeal in Kavanaugh held that the CDCR parole regulations are consistent with Proposition 57 and do not violate prisoners' due process rights. (Kavanaugh, supra, 61 Cal.App.5th at pp. 344-361.) Because Kavanaugh supports CDCR's position in this appeal, we asked the parties to address Kavanaugh in supplemental briefing. In his supplemental briefing, Flores argues Kavanaugh is unpersuasive and distinguishable, and the hearing officer violated his due process rights in determining that Flores posed an unreasonable risk of violence.
Also after briefing in this case, Flores was released on parole and therefore is no longer incarcerated. The parties agreed at oral argument that, as to Flores's release on parole, the petition for writ of habeas corpus is now moot, but that the trial court's order requiring CDCR to promulgate new regulations is not moot.
We granted the Attorney General's request, filed November 19, 2021, for judicial notice of a CDCR document reflecting Flores's release on parole on July 29, 2021.
We conclude Kavanaugh is on point and persuasive, the hearing officer properly considered whether Flores posed an unreasonable risk of violence, and the trial court's order to CDCR to promulgate new regulations must be reversed because the regulations were not inconsistent with Proposition 57 and due process and because new regulations had already superseded those applied by CDCR to deny parole for Flores.
We will reverse the trial court's order granting Flores's petition for writ of habeas corpus and remand with directions to the trial court to enter an order dismissing the petition for habeas corpus as to Flores's request for an in-person parole suitability hearing and to deny the request for an order directing CDCR to promulgate new regulations.
BACKGROUND
In 2008, Flores was convicted of second degree robbery, a violent offense, and sentenced to two years in prison. In 2010, while still on parole for that conviction, Flores fled when an officer tried to make a traffic stop. The ensuing chase covered more than 30 miles, with multiple dangerous traffic infractions. Finally, Flores rammed an occupied police vehicle and tried to run over an officer. For multiple evading and assault convictions, Flores was sentenced to a term of 16 years four months for nonviolent offenses. While incarcerated, Flores had violations for fighting, battery on an officer with an unknown liquid, and resisting an officer. He completed vocational computer training.
Flores sought consideration for parole under Proposition 57. He submitted a letter to the Board, which a hearing officer reviewed and considered. The hearing officer denied parole, finding Flores posed an unreasonable risk of violence to the community. Flores requested review of the hearing officer's decision, and a reviewing officer found that the hearing officer performed the proper functions and that the decision had a rational basis.
Flores filed a petition for writ of habeas corpus in the trial court. The trial court issued an order to show cause and appointed counsel for Flores. Without holding an evidentiary hearing, the trial court granted the petition. The trial court determined the hearing officer erred by finding dangerousness based "merely [on] a numerical count of aggravating factors weighed against a numerical count of mitigating factors . . . ." It also ruled Flores was entitled to an in-person parole suitability hearing under Proposition 57 and section 3041.5. In addition to granting relief specific to Flores, the trial court ordered CDCR to promulgate new regulations to require hearing officers to make decisions consistent with the trial court's interpretation of the necessary dangerousness determination and to provide the opportunity for in-person hearings for Proposition 57 parole decisions.
CDCR appeals the trial court's order.
DISCUSSION
I
Because Flores has been released on parole, his petition for writ of habeas corpus seeking an in-person parole suitability hearing is moot. An issue is moot when, without fault of the opposing party, an event occurs that renders it impossible for the court to grant a prevailing defendant any effectual relief. (See People v. DeLeon (2017) 3 Cal.5th 640, 645.) Therefore, the appropriate disposition as to this issue is reversal with directions to dismiss the petition as moot. (See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 135; In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 250 [reversing and remanding with instructions to dismiss moot action].)
II
On the other hand, the trial court's order requiring CDCR to promulgate new regulations is not moot as nothing has happened to render it impossible for CDCR to promulgate new regulations. We therefore turn to whether that order was proper. In doing so, we rely on the recently published decision in Kavanaugh, supra, 61 Cal.App.5th 320.
A
In Kavanaugh, the Court of Appeal held that CDCR's regulations implementing Proposition 57 do not conflict with constitutional guarantees and do not violate a prisoner's due process rights. In that case several prisoners sought habeas corpus relief after they were denied parole under the CDCR regulations. The trial courts granted the petitions but the Court of Appeal reversed, concluding: "[T]he parole regulations do not conflict with the constitutional guarantee of parole consideration or violate due process. [Proposition 57] broadly ensures parole consideration for eligible felons, but it does not specify the procedures governing the parole consideration process. Rather, it vests CDCR with authority to adopt regulations in furtherance of its guarantee of parole consideration. CDCR acted within its mandate by enacting the [determinate] regulations. Further, the [determinate] regulations do not impinge on the procedural due process rights of prisoners seeking parole. They require annual parole eligibility reviews, set forth sufficiently definite criteria governing parole release decisions, mandate a written statement of reasons for each parole release decision, and grant prisoners notice of the parole proceeding, an opportunity to submit a written statement to the Board of Parole Hearings (the Board), and the right to seek review of an adverse decision. These features adequately safeguard against arbitrary and capricious parole release decisions." (Kavanaugh, supra, 61 Cal.App.5th at p. 335.)
The Court of Appeal in Kavanaugh found "no tension between [Proposition 57's] broad promise of parole consideration and the parole regulations CDCR has adopted." (Kavanaugh, supra, 61 Cal.App.5th at p. 347.) In so finding, it distinguished the statutes and regulations applicable to parole consideration for indeterminately sentenced prisoners. (Ibid.) Although those statutes and regulations provide for the appointment of legal counsel for potential parolees, in-person parole hearings, and multimember parole panels, the Court of Appeal rejected the argument that parole statutes and regulations applicable to indeterminately sentenced prisoners were applicable to prisoners determinately sentenced and now eligible for parole consideration under Proposition 57. (Ibid.) Flores disagrees with Kavanaugh in this regard, referring to the statutes and regulations applicable to indeterminately sentenced prisoners as the "standard" parole consideration scheme and claiming that the Proposition 57 voters intended to apply this scheme to determinately sentenced prisoners. As did Kavanaugh, we reject this reasoning because nothing in Proposition 57 evinces a voter intent in support of Flores's view. Furthermore, the scheme applicable to indeterminately sentenced prisoners is not the only parole consideration scheme that was already in existence before passage of Proposition 57. As Kavanaugh noted, an entirely different scheme of parole consideration that in many respects resembles the scheme for determinately sentenced prisoners applies to nonviolent, non-sex-registrant second-strikers. (Kavanaugh, supra, 61 Cal.App.5th at p. 348.)
We agree with Kavanaugh that CDCR's regulations promulgated under the direction of Proposition 57 are consistent with Proposition 57. And we conclude Proposition 57 does not require a scheme different from CDCR's regulations.
B
Flores argues Kavanaugh did not consider whether Proposition 57 gave determinately sentenced prisoners the right to in-person parole hearings under Penal Code section 3041.5. But Kavanaugh included Penal Code section 3041.5 in its summary of parole statutes and regulations applicable only to indeterminately sentenced prisoners (Kavanaugh, supra, 61 Cal.App.5th at p. 347), a group of statutes that includes Penal Code section 3041, which expressly excludes inmates sentenced under Penal Code sections 1170 et seq. [determinate sentencing]. While it may be true Kavanaugh did not specifically address the right to in-person hearings under Penal Code section 3041.5, it noted that provisions of the scheme applicable only to indeterminately sentenced prisoners did not confer any procedural rights on determinately sentenced prisoners. (Kavanaugh, at pp. 347-350.)
Penal Code section 3041.5, subdivision (a)(2) provides that, at all parole hearings, "[t]he inmate shall be permitted to be present, to ask and answer questions, and to speak on his or her own behalf."
C
Kavanaugh concluded that prisoners do not have a due process right to in-person parole hearings under Proposition 57. (Kavanaugh, supra, 61 Cal.App.5th at pp. 347.) Flores argues Kavanaugh's conclusion is distinguishable and incorrect.
1
Flores suggests Kavanaugh is distinguishable because it considered whether all determinately sentenced prisoners are eligible for in-person hearings under Proposition 57, whereas the trial court here found a due process right to an in-person hearing only for those potential parolees who were denied parole on a written submission and sought reconsideration. The trial court in this case noted it would be expensive to afford an in-person hearing to all determinately sentenced prisoners under Proposition 57, and ruled that CDCR "need not promulgate regulations requiring a live hearing for all eligible prisoners. [CDCR] might instead provide an initial paper review by which the parole board could grant parole to those it deems suitable for such. Upon request of any deemed unsuitable for parole a live hearing would be provided."
We disagree that Kavanaugh is distinguishable on this basis. Kavanaugh held that a determinately sentenced prisoner has no right to an in-person parole hearing under Proposition 57. We see no reason why such a constitutional due process right would then emerge from an initial denial of parole. Although the trial court's proposed process would be less expensive than in-person parole hearings for all determinately sentenced prisoners, and such a consideration is a permissible balancing factor in determining what due process requires (Kavanaugh, supra, 61 Cal.App.5th at p. 358), there is no evidence in this record about how much money such a hybrid procedure would cost or save. In any event, a prisoner may obtain judicial review of a parole denial by petition for writ of habeas corpus, which entitles a prisoner to an in-person hearing if the petition states a prima facie case for relief. (Id. at p. 341.)
2
Flores further argues Kavanaugh is distinguishable because it did not consider whether the determinate regulations violate the due process protections of the United States Constitution.
Kavanaugh's due process analysis was based mainly on the due process protections of the California Constitution. Nevertheless, although Kavanaugh cited mainly to California cases, those cases considered the jurisprudence of the United States Supreme Court on due process and then determined that the state Constitution provides greater protections. Kavanaugh applied the balancing test stated in People v. Ramirez (1979) 25 Cal.3d 260 (Ramirez) for determining whether CDCR's regulations violate due process rights. In Ramirez, the California Supreme Court held that the state Constitution provides due process protection for more liberty interests than does the federal Constitution. (Id. at pp. 265-269.) In other words, "[o]ur state due process constitutional analysis differs from that conducted pursuant to the federal due process clause in that the claimant need not establish a property or liberty interest as a prerequisite to invoking due process protection. [Citations.]" (Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1069.)
In his argument that Kavanaugh did not consider the protections provided by the United States Constitution, Flores does not explain how considering federal due process protections would lead to a different result. Indeed, it appears that, because the state Constitution provides greater protection, a separate analysis relying only on United States Supreme Court precedents would not yield a better result for Flores. This conclusion is supported by a footnote in Kavanaugh noting that "numerous lower federal courts have found the parole regulations do not violate prisoners' procedural due process rights under the federal Constitution. [Citations.] Further, we note that there is federal appellate authority standing for the proposition that in-person parole hearings are not guaranteed by the federal due process clause. (Franklin v. Shields (4th Cir. 1977) 569 F.2d 784, 800 [en banc] ['[W]e discern no constitutional requirement that each prisoner receive a personal [parole] hearing . . . .'].)" (Kavanaugh, supra, 61 Cal.App.5th at p. 359, fn. 19.)
3
In addition, Flores argues Kavanaugh did not give sufficient weight to the dignitary interests of Proposition 57.
The dignitary interest in notice and an opportunity to be heard is one of the balancing factors in determining what due process requires. (Ramirez, supra, 25 Cal.3d at p. 269.) "[I]dentification of the dictates of due process generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Citation.]" (Ibid., italics added.)
Kavanaugh considered and rejected the argument that the dignitary interest provided by Proposition 57 required an in-person parole hearing. The court held: "Finally, with respect to the Ramirez factor concerning dignitary interests, we note that the parole regulations permit prisoners to make their case for parole release in ways other than in-person parole hearings. As noted, they allow prisoners to file a written statement before an initial parole decision and, if necessary, in a second written statement explaining why the initial parole decision is incorrect. [Citations.] Prisoners receive these opportunities annually, assuming they remain incarcerated and eligible for parole consideration. [Citations.] These opportunities promote the dignitary values of the persons seeking parole release. [Citation.]" (Kavanaugh, supra, 61 Cal.App.5th at p. 359.)
Given the regulations allowing the prisoner to submit written statements before and after an initial parole decision and providing for annual reviews, Kavanaugh concluded "the parole regulations afford prisoners reasonable notice and a reasonable opportunity to be heard. That is all due process requires. [Citation.]" (Kavanaugh, supra, 61 Cal.App.5th at p. 359.)
Flores argues a prisoner has an interest in seeking freedom and that it may be difficult for a prisoner "to fully understand the review and explain themselves through written submissions." While an in-person hearing could be beneficial in helping prisoners understand the process and explain themselves better, whether due process requires an in-person hearing is subject to the balancing of factors that include dignitary interests but also "the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (Ramirez, supra, 25 Cal.3d at p. 269.) We agree with Kavanaugh that the balancing of the Ramirez factors supports a finding that the CDCR regulations provide constitutional due process. (Kavanaugh, supra, 61 Cal.App.4th at pp. 354-359.)
III
We additionally conclude the trial court erred by directing CDCR to promulgate new regulations because Flores's parole suitability was determined under emergency regulations that had already been superseded by the time of the hearing on the petition for writ of habeas corpus. The trial court ordered CDCR to promulgate new regulations requiring "a Lawrence-based determination for suitability for parole for Proposition 57 parole-suitability determinations." The trial court should not have ordered the promulgation of new regulations because new regulations had already superseded the emergency regulations reviewed by the trial court. The Board denied parole for Flores in 2017 under emergency regulations not meant to be permanent, and new regulations were promulgated and became effective in 2018. (See Cal. Code Regs., tit. 15, § 2449.1, Register 2017, No. 15 (Apr. 13, 2017) through Register 2022, No. 2, (Jan. 14, 2022).) The trial court recognized there were new CDCR regulations, but it still ordered CDCR to promulgate even newer regulations based on Lawrence, without considering whether the current regulations were adequate. Because the determination that Flores is not suitable for parole was made under regulations that have been superseded and the trial court did not consider whether the new regulations are adequate, the trial court should not have ordered promulgation of newer regulations. The Board relied on the superseded regulations in providing Flores's parole suitability determination, and hence those superseded regulations are the only regulations relevant to this appeal. (See Hance v. Super Store Industries (2020) 44 Cal.App.5th 676, 686 [applying rule in force at the relevant time].)
DISPOSITION
The order granting the petition for writ of habeas corpus is reversed, and the matter is remanded to the trial court with directions to enter an order dismissing the petition for habeas corpus as to Flores's request for an in-person parole hearing and to deny the request for an order directing CDCR to promulgate new regulations.
We concur: DUARTE, J. HOCH, J.
IN THE SUPREME COURT OF CALIFORNIA
En Banc
In re ANTHONY FLORES on Habeas Corpus.
S273785
Cantil-Sakauye, Chief Justice
The petition for review is denied.
Liu, J., is of the opinion the petition should be granted.
See Dissenting Statement by Justice Liu.
Dissenting Statement by Justice Liu
In 2016, California voters passed Proposition 57, one of "several measures aimed [at] reduc[ing] the prison population" as required by federal court order. (In re Gadlin (2020) 10 Cal.5th 915, 923.) The text of the measure said it would, among other purposes, "[p]rotect and enhance public safety," "[s]ave money by reducing wasteful spending on prisons" and "[s]top the revolving door of crime by emphasizing rehabilitation, especially for juveniles." (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 2, p. 141.) Consistent with these goals, Proposition 57 added article I, section 32 to the California Constitution. It states, in relevant part: "Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense." (Id., § 32, subd. (a)(1)).
Proposition 57 directed the Department of Corrections and Rehabilitation (Department) to "adopt regulations in furtherance of" the guarantee of early parole consideration. (Cal. Const., art. I, § 32, subd. (b).) The Department issued regulations governing early parole consideration for persons serving a determinate sentence for a nonviolent felony offense. (Cal. Code Regs. tit. 15, §§ 2449.1-2449.7, 3490-3493.) For this subset of inmates, the regulations limit parole consideration to a paper review of "[i]nformation contained in the inmate's central file and the inmate's documented criminal history," together with "[w]ritten statements submitted by the inmate, any victims . . ., and the [relevant] prosecuting agency or agencies." (Id., § 2449.4, subd. (b)(1) & (2).) Inmates are not entitled to an in-person hearing for the initial parole determination or the subsequent review of that decision. (Id., §§ 2449.4, 2449.7.)
Petitioner Anthony Flores is one of many inmates who have been denied parole under the paper review process. In 2011, after fleeing an attempted traffic stop, Flores was convicted of three evasion and assault charges and sentenced to a term of 16 years and four months. In July 2016, Flores was referred to the Board of Parole Hearings (Board) for nonviolent offender parole review. An officer of the Board reviewed his files and issued a two-page decision denying parole. The aggravating factors justifying the denial included the nature of Flores's commitment offenses, which demonstrated an "extremely high level of violence and recklessness," his prior criminal record, and three rules violations over approximately six years. The written order also acknowledged some mitigating circumstances, including the fact that his commitment offenses resulted in no physical injury to any victim and that he had completed some "positive programming" while in prison. Flores appealed this decision, arguing that his files did not adequately reflect the positive things he had done in prison. Another officer issued a one-page order upholding Flores's parole denial.
On a petition for writ of habeas corpus, Flores argued that the Department's failure to afford him an opportunity to appear personally before the officers considering his parole application violated the terms of Proposition 57 and the constitutional guarantee of due process of law. The superior court agreed, ordering the Department to provide Flores with an in-person parole hearing and also ordering it to "promulgate new regulations reflecting the right of Proposition 57 parole-eligible inmates to request and appear at a live hearing on parole suitability."
The Court of Appeal vacated the superior court's order. In rejecting Flores's due process claim, the panel relied on In re Kavanaugh (2021) 61 Cal.App.5th 320 (Kavanaugh), which had denied a similar claim. Since then, two other appellate courts, also relying on Kavanaugh, have rejected similar due process claims asserting the right to an in-person hearing. (In re Bailey (2022) 76 Cal.App.5th 837; In re Ernst (May, 5, 2022, F081386) [nonpub. opn.].)
As explained below, I am doubtful that the denial of in-person parole hearings to eligible inmates comports with due process. Given the statewide importance of this issue, I would grant review. Although Flores has been paroled since filing his habeas corpus petition, thousands of Proposition 57-eligible inmates remain in prison. The fact that Flores has been released during the pendency of this matter, despite not having been afforded an in-person hearing, demonstrates that this is an issue capable of recurring yet evading review.
The due process analysis here requires consideration of four factors:" '(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" (Kavanaugh, supra, 61 Cal.App.5th at pp. 352-353, quoting People v. Ramirez (1979) 25 Cal.3d 260, 269 (Ramirez).)
1. As to the private interest, Kavanaugh said a Proposition 57-eligible inmate possesses a" 'mere anticipation or hope of freedom'" - an interest it described as less weighty than the" 'absolute liberty to which every citizen is entitled'" and less weighty than the" 'conditional liberty'" available to those already granted parole. (Kavanaugh, supra, 61 Cal.App.5th at p. 355.) But this description of a parole applicant's interest was derived from case law that precedes Proposition 57. (See Kavanaugh, at pp. 354-355, citing In re J.G. (2008) 159 Cal.App.4th 1056, 1064, In re Sturm (1974) 11 Cal.3d 258, 266 (Sturm), and Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 10.) As the trial court here recognized, Proposition 57 "[p]lainly . . . created a state constitutional right to early parole consideration for inmates currently serving a prison sentence for nonviolent felonies." This right lends gravity to the applicant's interest. (See Wolff v. McDonnell (1974) 418 U.S. 539, 557 ["the State having created [a state law right], the prisoner's interest has real substance and is sufficiently embraced [by the due process guarantee] to insure that the state-created right is not arbitrarily abrogated"].)
Specifically, a parole applicant possesses not only a subjectively held hope for release, but also the justified expectation that release will be granted upon the satisfaction of enumerated criteria. As the high court has explained, a state may "create[] a constitutionally protected liberty interest" if state law employs "mandatory language" stating that parole" 'shall'" be granted once certain findings are made. (Board of Pardons v. Allen (1987) 482 U.S. 369, 374.) In these circumstances, individuals have an" 'expectation of parole' " protected by due process. (Id. at p. 373.) California law employs such mandatory language. The Department's regulations state that a "hearing officer shall approve release" if he or she "finds the inmate does not pose a current, unreasonable risk of violence or a current, unreasonable risk of significant criminal activity." (Cal. Code Regs. tit. 15, § 2449.4, subd. (f); see Pen. Code, § 3041, subd. (b)(1)) [the Board "shall grant parole to an inmate unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that the consideration of the public safety requires a more lengthy period of incarceration for this individual"].)
Our cases have long held that where state law makes an inmate eligible for parole consideration, the inmate "not only has a right to apply for parole, but is entitled to have his application 'duly considered.'" (Sturm, supra, 11 Cal.3d at p. 268, citing In re Prewitt (1972) 8 Cal.3d 470, In re Minnis (1972) 7 Cal.3d 639, and In re Schoengarth (1967) 66 Cal.2d 295.) The "right to due consideration of parole applications" includes a right to "be free from an arbitrary parole decision, to secure information necessary to prepare for interviews with the [parole authorities], and to something more than mere pro forma consideration." (Sturm, at p. 268; see also In re Rosenkrantz (2002) 29 Cal.4th 616, 655 ["our past decisions also make clear that the requirement of procedural due process embodied in the California Constitution (Cal. Const., art. I, § 7, subd. (a)) places some limitations upon the broad discretionary authority of the Board"].) We have found due process violations when procedures have failed to satisfy these basic guarantees. (See In re Lawrence (2008) 44 Cal.4th 1181, 1227 (Lawrence) [petitioner's due process rights were violated by the Governor's reliance upon the immutable circumstances of her commitment offense in reversing the parole board's decision to grant parole]; Sturm, at p. 272 [finding due process violation when parole authorities failed to provide a definitive written statement of reasons for a parole denial].)
2. The court in Kavanaugh also did not give appropriate weight to the second due process consideration: "the risk of an erroneous deprivation of such interest through the procedures used." (Ramirez, supra, 25 Cal.3d at p. 269.) Of course, the opportunity to submit written statements goes some way toward "minimiz[ing] the risk of an arbitrary or capricious parole denial." (Kavanaugh, supra, 61 Cal.App.5th at p. 356.) But, as Kavanaugh acknowledged, in-person hearings" 'may be useful in resolving conflicting information and in the introduction of subjective factors into the decision making process that might otherwise not be considered.'" (Id. at pp. 357-358.) Indeed, we have emphasized the inherent subjectivity of the parole determination and have recognized that "disadvantages . . . may follow from an inmate's decision not to testify at a parole hearing or otherwise cooperate in the development of current information . . . ." (In re Shaputis (2011) 53 Cal.4th 192, 219, 220.) The categorical deprivation of an in-person hearing would likely work the same or even greater disadvantages to inmates like Flores.
The Department's own data on inmates eligible for early parole consideration under Proposition 57 show that whereas 4, 419 of 27, 415 determinately sentenced inmates (16 percent) who received paper review have been granted parole, 512 of 1, 855 indeterminately sentenced inmates (28 percent) who received a hearing have been granted parole. (Dept. of Corrections and Rehabilitation, Three-Judge Quarterly Update (Mar. 15, 2022) <https://www.cdcr.ca.gov/3-judge-court-update/> [as of June 15, 2022].) This is despite the Department's representations that, when it comes to assessing "public safety," "indeterminately sentenced nonviolent offenders are treated differently given the increased length of potential incarceration and the severity of their criminal histories" - factors "requiring greater scrutiny in parole consideration proceedings . . . as compared to determinately sentenced nonviolent offenders." (In re Bailey, supra, 76 Cal.App.5th at p. 856.)
Moreover, in reviewing parole determinations, we have considered the applicant's ability to "consistently, repeatedly, and articulately . . . express[] deep remorse for her crime as reflected in a decade's worth of psychological assessments and transcripts of suitability hearings that were before the Board." (Lawrence, supra, 44 Cal.4th at pp. 1222-1223, italics added.) If the applicant has no opportunity to appear before the Board, the accuracy of the Board's determination and courts' ability to review it may be compromised.
The experience of parole authorities in other jurisdictions confirms the importance of in-person hearings. A former member of the Rhode Island Parole Board described the importance of in-person interviews this way: "It was not unusual for me to have a tentative opinion in mind - based on my review of the copious records - when the inmate entered the hearing room and then shift my position based on the in-person interview. . . . An inmate who had what appeared to be slim chances of getting my vote for parole would overwhelm me with her insight and sincerity, so much so that I changed my mind." (Reamer, On The Parole Board: Reflections on Crime, Punishment, Redemption, and Justice (2017) p. 62.) Similarly, one of the first members of the Florida Parole Commission has described how "[p]ersonal contact between the prisoner and members of the releasing agency is essential to a good parole decision." "[F]rom experience I know that there is a great deal one can find out about a person's attitude towards his fellow man through a conscientiously conducted interview." (Bridges, The Personal Interview in Reappraising Crime Treatment: 1953 Yearbook of the National Probation and Parole Association (Matlin edit., 1953) p. 34, some capitalization omitted.) A 2015 survey of 40 states' parole authorities found" 'near unanimity'" in the belief that boards should be required to evaluate an inmate's demeanor during the parole hearing. (Bronnimann, Remorse in Parole Hearings: An Elusive Concept with Concrete Consequences (2020) 85 Mo. L.Rev. 321, 337.)
3. As to the third due process consideration - the dignitary interest of parole applicants - Kavanaugh said the opportunity to submit written statements sufficiently "promote the dignitary values of the persons seeking parole release." (Kavanaugh, supra, 61 Cal.App.5th at p. 359.) But this consideration requires us to examine not only whether the opportunity to be heard has been provided, but also to" 'ensure that the method of interaction itself is fair.'" (Ramirez, supra, 25 Cal.3d at p. 268.) Accordingly, we have held that due process is violated when a patient-inmate is not given an opportunity to respond orally in proceedings that determine whether he or she will be committed to a rehabilitation facility or prison. (Id. at p. 275.) In that context, we said that" '[o]nly through [oral] participation can the individual gain a meaningful understanding of what is happening to her, and why it is happening. Moreover, providing the opportunity to react to register concern, dissatisfaction, and even frustration and despair is the best method to promote the feeling that, notwithstanding the substantive result, one has been treated humanely and with dignity by one's government.'" (Ibid.)
Flores's own words illustrate the point. In seeking review of his parole denial, he said: "I just feel the Board should have let me be able to sit down in front of you when you guys are talking about the things I did in the past, so I can defend and explain myself. And just get to see face to face and know a little about me as a person." He further stated: "I just wish I could have been there for this Hearing. So you guys could know what I am still going through in prison and take the time to know a little about me and my life" instead of "just reading what a person wrote down about me."
4. As to the fourth due process consideration - the government interest - Kavanaugh said the "weighty fiscal and administrative burdens that in-person parole hearings would impose" outweigh any "potential benefits" to Proposition 57-eligible inmates. (Kavanaugh, supra, 61 Cal.App.5th at p. 358.) In Kavanaugh, the Attorney General said "it would cost the Board tens of millions of dollars annually to conduct in-person parole hearings for all eligible determinately sentenced nonviolent prisoners." (Id. at p. 357.) But even if accurate, this singular focus on the fiscal cost of providing hearings misses two additional considerations.
The first is the savings that might come from the release of individuals who otherwise would have been denied parole. Proposition 57 expanded access to parole consideration in order to "[s]ave money by reducing wasteful spending on prisons." (Voter Information Guide, Gen. Elec., supra, text of Prop. 57, § 2, p. 141.) The initiative was enacted in response to a federal court order finding that prison overcrowding had burdened the Department's systems and was the "primary cause of the unconstitutional denial of adequate medical and mental health care to California's prisoners." (Coleman v. Schwarzenegger (E.D.Cal. 2009) 922 F.Supp.2d 882, 920.) Since then, the annual cost of housing an inmate in California prisons has more than doubled, to $106, 131 per inmate. (Legislative Analyst's Office, How much does it cost to incarcerate an inmate? (Jan. 2022) <https://lao.ca.gov/policyareas/cj/6_cj_inmatecost> [as of June 15, 2022].) An accurate assessment of the fiscal impact of providing in-person parole hearings must account for both costs and savings.
Second, when considering government interests under the due process analysis, we have not confined the analysis to money alone. (Ramirez, supra, 25 Cal.3d at p. 269 [describing the relevant government interest as "including the function involved and the fiscal and administrative burdens" to the state].) Besides saving money, Proposition 57 aims to "[s]top the revolving door of crime by emphasizing rehabilitation, especially for juveniles." (Voter Information Guide, Gen. Elec., supra, text of Prop. 57, § 2, p. 141.) As the high court has said in the context of parole revocation hearings, "[t]he parolee is not the only one who has a stake in his conditional liberty. Society has a stake in whatever may be the chance of restoring him to normal and useful life within the law." (Morrissey v. Brewer (1972) 408 U.S. 471, 484.) Likewise, accurate parole determinations may reduce the number of incarcerated persons and increase the number who can build useful and productive lives outside of prison. This is part and parcel of the government interest here.
In a future case, this court may decide to address the issue presented in this petition. In the meantime, the Legislature may wish to consider ways to increase the accuracy and reliability of Proposition 57 parole determinations. The Legislature is well positioned to assess the fiscal impact of greater procedural protections, and it may consider a range of options (not just one-size-fits-all policies) for handling the significant number and variety of applications filed by Proposition 57-eligible inmates.