Opinion
Rehearing Denied Jan. 24, 1974.
Opinion on pages 569-576 omitted.
HEARING GRANTED
For Opinion on Hearing, see 120 Cal.Rptr. 876, 534 P.2d 716.
[111 Cal.Rptr. 670]James F. Smith, Legal Aid Society of Sacramento County, Sacramento, for petitioners.
Evelle J. Younger, Atty. Gen., by Brian Taugher, Deputy Atty. Gen., Sacramento, for respondents.
REGAN, Associate Justice.
On August 22, 1973, a petition for writ of mandate was filed in the California Supreme Court. The petition purported to set forth a class action on behalf of certain individuals who were subject to having their paroles revoked or their parole dates rescinded. On August 27, 1973, the Supreme Court transferred the case to this court. On September 19, 1973, we issued an alternative writ of mandate limited to petitioner's own claim.
The petitioner generally alleges that the rescission of his parole date did not conform to the requirements set forth in Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and In re Prewitt (1972) 8 Cal.3d 470, 105 Cal.Rptr. 318, 503 P.2d 1326. In particular, petitioner prays that he be afforded the assistance of counsel and that this court mandate the Adult Authority to reinstate petitioner's parole date.
Petitioner was first received by the Department of Corrections on October 4, 1955, on two burglary charges. He was subsequently paroled in 1959, 1964 and 1971. All three of these paroles were revoked for good cause.
On March 20, 1972, petitioner was interviewed by two Adult Authority representatives who recommended that a discharge date be set for September 8, 1972. The two Adult Authority members reviewing the recommendation disagreed, seriously questioning the appropriateness of parole or discharge. The matter was placed on the May 1972 calendar for consideration by an Adult Authority member panel.
On May 23, 1972, petitioner appeared before a two-member Adult Authority panel. He demanded a discharge and stated: 'I can't do no parole so forget about it.' The panel, however, granted petitioner parole effective November 1, 1972, specifically conditioned on the following: (1) Petitioner's remaining free of adverse disciplinary reports; (2) petitioner's agreement to work in assignments designated by staff; (3) petitioner's receiving average to above average work and behavior reports; and (4) participation in a program in Texas.
On May 26, 1972, when petitioner was advised that he had been granted parole on special conditions, he refused to sign a form acknowledging his parole.
Petitioner was later transferred from the California Conservation Center at Susanville to the California Men's Colony at San Luis Obispo because he had extreme racial [111 Cal.Rptr. 671] feelings and threatened to injure black and brown convicts. It was felt that if he remained at Susanville, 'undoubtedly he or someone else will be hurt.'
At San Luis Obispo, petitioner made threats against the Adult Authority, the Department of Corrections' staff and other unspecified individuals, including fellow inmates. In addition, petitioner engaged in a number of dialogues which appeared to institutional staff to be evidence of a deteriorating mental condition.
On August 7, 1972, petitioner's Parole Release Authorization (through the Interstate Compact Administrator) to go to a parole program in Texas on September 5, 1972, was received. On August 11, 1972, petitioner's parole date was advanced from November 1, 1972, to September 5, 1972. On August 30, 1972, petitioner signed his release papers, stating that he was doing so under duress, made several threats and gave the impression that he might not report as required. His corrections counselor referred him for a psychiatric interview. On August 31, 1972, the psychiatrist concluded that parole release at that time was inadvisable, and the matter was referred to the psychiatric council for study and findings.
On September 5, 1972, the day petitioner was scheduled for release, this council concluded its report by seriously questioning the advisability of release on parole at that time.
During the month of September 1972, the Adult Authority was advised that petitioner had sent a threatening letter to a state assemblyman.
In a letter from a consultant to the assemblyman he commented as follows: 'It has been alleged that Mr. Gee sent this committee a letter in which he threatened the lives of Assemblyman Walter Karabian and members of the Adult Authority.
On September 12, 1972, petitioner was placed on the Special Proceedings Calendar, and was interviewed by two representatives of the Adult Authority. He was then placed on the Member Review Calendar on September 20, 1972, where he was interviewed by two members of the Adult Authority. At that interview, petitioner stated he couldn't remember making threatening statements. Feeling that the matter should be considered by the full board, the case was placed on the en banc calendar for October 30, 1972.
On that date the full board rescinded their earlier action granting parole, denied him a new grant of parole, and placed him on the October 1973 calendar for further parole consideration.
The case factors under consideration by the Adult Authority en banc on October 30, 1972, included the following: '(1) August 30, 1972, record of Mr. Gee's statement to Correctional Counselor W. E. Barclay, when signing his parole release papers, that he was signing them under duress, that no officer will bring him back without a fight, and the impression that he may or may not report in person at Fort Worth, Texas, as instructed.
'(2) The September 5, 1972, report of Findings of Psychiatric Council at California Mens Colony, San Luis Obispo, California, that 'this Council seriously questions the advisability of Subject's release at this time.'
'(3) Verbalized threats by Mr. Gee, documented July 8, 1972, by K. W. Lawrence, Correctional Officer, California Mens Colony, San Luis Obispo, California, to assault institution staff, and to exact violent revenge against the Adult Authority and the State of California after his release.
'(4) Personal report, September 20, 1972, by Jerry Haleva, Consultant to Assemblyman Walter Karabian, that their office had received a threatening letter from Mr. Gee.'
In a replication (traverse), petitioner maintains there are contested issues of [111 Cal.Rptr. 672] fact as to the following: (1) he did not write any threatening letters and none exist; (2) he has always indicated he will accept parole to Texas; (3) the parole papers were signed and processed for release, and, (4) the psychiatric reports are internally inconsistent.
For a discussion of the legal issue presented by such a situation, see In re Saunders (1970) 2 Cal.3d 1033, 1047-1048, 88 Cal.Rptr. 633, 472 P.2d 921.
The Department of Corrections apparently has no copies in their file of any threatening letters allegedly written by petitioner.
An inmate is entitled to a hearing which substantially conforms to the Morrissey procedures on the question whether an order granting parole should be rescinded as improvidently granted. (In re Prewitt, supra, 8 Cal.3d at p. 474, 105 Cal.Rptr. 318, 503 P.2d 1326.) As Prewitt noted, however, where an inmate has not been actually released on parole, the preliminary hearing which Morrissey provides for in the case of parole revocations, is not compelled by due process considerations. (Ibid, fn. 6.)
A second more formal hearing--the revocation hearing itself--is required by Morrissey.
'There must also be an opportunity for a hearing, if it is desired by the parolee, prior to the final decision on revocation by the parole authority. This hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation. The revocation hearing must be tendered within a reasonable time after the parolee is taken into custody. A lapse of two months, as the State suggests occurs in some cases, would not appear to be unreasonable.
'We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds. Our task is limited to deciding the minimum requirements of due process. They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers of lawyears; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.' (408 U.S. at p. 487, 92 S.Ct. at p. 2603, 33 L.Ed.2d at pp. 498-499; see also, In re Prewitt, supra, 8 Cal.3d at pp. 473-474, fn. 5, 105 Cal.Rptr. 318, 503 P.2d 1326.)
Looking now to petitioner's contentions, first, we decline to mandate the authority to reinstate petitioner's parole date. Nothing we can find in either Morrissey or Prewitt requires such an action on our part. It is only when the authority acts without information, fraudulently, or on mere personal caprice that a remedy exists. (Pope v. Superior Court (1970) 9 Cal.App.3d 636, 641, 88 Cal.Rptr. 491.) Nothing in the record before us substantiates that the authority so acted.
As to the second point, the Adult Authority rescinded petitioner's parole date on October 30, 1972. Prewitt was not decided until December 14, 1972. (8 Cal.3d at p. 470, 105 Cal.Rptr. 318, 503 P.2d 1326.) Prewitt extended Morrissey to parole rescission hearings and was made retroactive to the date of the decision in Morrissey, i. e., June 29, 1972. (8 Cal.3d at pp. 476-477, 105 Cal.Rptr. 318, 503 P.2d 1326.)
The Attorney General (on behalf of respondents) concedes that petitioner did not receive a Prewitt hearing (since it [111 Cal.Rptr. 673] was not even law at the time) and also concedes that petitioner should be given a new hearing. By affidavit, Raymond C. Brown, Chairman of the Adult Authority, deposes that petitioner 'is now being scheduled for a new hearing [pursuant to Prewitt] to consider whether his earlier parole date should be rescinded, or whether he should be released on parole.' At oral argument this court was advised the date selected for the hearing was December 27, 1973.
The affidavit by Brown also indicates that the authority and other concerned government authorities are well aware of the rights guaranteed inmates under Morrissey and Prewitt. Brown deposes that the manual reflecting current procedures implementing Prewitt should be promulgated prior to December 1, 1973.
In view of the concession of the Attorney General, and in view of Brown's affidavit, we believe that this relief petitioner has asked for has been, or will be, granted and therefore we decline to act further in the matter.
Petitioner also contends that he is entitled to counsel in the in-prison rescission hearing. Prison officials have indicated that they will not permit inmates to have counsel present at these hearings.
Approximately a year after the decision in Morrissey, the Supreme Court held that in certain limited instances parolees and probationers are entitled to appointed counsel at revocation proceedings. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656.) However, both Morrissey and Gagnon apply to situations where a new deprivation of liberty is at stake. They were not concerned with institutional settings.
See also People v. Vickers (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313, wherein it was held that a probationer is entitled to counsel at formal proceedings for the revocation of parole. The court was careful to note, however, that: 'This decision . . . is applicable only to orders which revoke probation or modify it in a manner which places greater restrictions on the probationer's liberty.' (8 Cal.3d at p. 462, fn. 13, 105 Cal.Rptr. at p. 314, 503 P.2d at p. 1322; emphasis added.)
It was not until our Supreme Court's decision in Prewitt that the panoply of rights set forth in Morrissey was extended to rescissions of parole. Prewitt, however, specified only the due process requirements set forth in Morrissey, and gave no hint as to any right of counsel.
In this connection, the court in Morrissey made the following pertinent comment: 'We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.' (408 U.S. at p. 489, 92 S.Ct. at 2604, 33 L.Ed.2d at p. 499.)
Further, as stated in In re Tucker (1971) 5 Cal.3d 171, 179, 95 Cal.Rptr. 761, 765, 486 P.2d 657, 661, 'we should bear in mind the probable costs and consequences involved in casting excessive burdens upon administrative machinery.'
In conclusion, we hold that the Gagnon right to counsel should not be extended to rescission hearings under Prewitt.
The alternative writ and order to show cause are discharged and the petition denied.
RICHARDSON, P. J., and GOOD, J. , concur.
Assigned by the Chairman of the Judicial Council.
'I would like to point out that we have no record of ever having received such a letter. Furthermore, I personally do not recollect any such communication from Mr. Joseph Gee, and would have to conclude that to the best of my knowledge, no such letter existed.'