Opinion
A160708
01-15-2021
In re STEVEN ALLEN DEAY, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Shasta County Super. Ct. No. 95F6989)
In March 2019, petitioner Steven Allen Deay was referred by the California Department of Corrections and Rehabilitation (the department) to the parole board for a Proposition 57 parole hearing for nonviolent offenders. The department informed Deay that his hearing would be scheduled within one year. One year later, however, the department informed Deay it would not refer him to the parole board for a Proposition 57 parole hearing because he would be eligible for parole under the elderly parole program within a year. The board then scheduled Deay for a hearing under the elderly parole program for March of 2021.
By cancelling Deay's Proposition 57 parole hearing, the department misapplied its own regulations. The regulations require the parole board to conduct a Proposition 57 parole hearing within one year after the referral to the parole board. We shall direct the parole board to conduct a Proposition 57 parole hearing within 30 days of the issuance of this decision.
BACKGROUND
Deay was convicted in 1995 in Shasta County of first degree burglary, with enhancements for three prior serious felonies. As a three strikes offender, he received a sentence of 25 years to life for the burglary (Pen. Code, §§ 459; 1170.12, subd. (b)), plus a consecutive 15-year term for the enhancements (Pen. Code, § 667, subd. (a)(1)).
In November 2016, the electorate passed Proposition 57, The Public Safety and Rehabilitation Act of 2016. Proposition 57 added section 32 to article I of the California Constitution. Under subdivision (a)(1) of section 32, "[a]ny 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." For that purpose, "the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence." (Cal. Const. art. I, § 32, subd. (a)(1)(A).) Subdivision (b) of section 32 directs the department to "adopt regulations in furtherance of these provisions."
The department classified Deay's burglary conviction as nonviolent. However, the initial set of regulations adopted by the department excluded Deay and thousands of other nonviolent offenders from parole consideration because they were serving life terms under the three strikes law. The original regulations stated that "an inmate is not eligible for early parole consideration by the Board of Parole Hearings . . . if . . . [¶] [t]he inmate is currently incarcerated for a term of life with the possibility of parole for an offense that is not a violent felony . . . ." (Cal. Code Regs., tit. 15, § 3491, former subd. (b)(1)).
Unless otherwise noted, all further undesignated references are to title 15 of the California Code of Regulations.
In In re Edwards (2018) 26 Cal.App.5th 1181, Division Five of the Second Appellate District struck down the department's regulations that precluded inmates serving life terms from receiving a Proposition 57 parole hearing. The court rejected the department's argument that parole eligibility applies only to determinately sentenced inmates and that public safety requires their exclusion (id. at p. 1188), finding the argument "at war with the straightforward textual conclusion" that eligible inmates sentenced to indeterminate terms are entitled to parole consideration (id. at p. 1190).
In September 2018, shortly after Edwards was decided, Deay filed a petition for writ of habeas corpus pro se in our court arguing he is entitled to a Proposition 57 parole hearing. We requested a preliminary opposition and instructed the Attorney General to address the Edwards decision. The Attorney General responded that the department was in the process of drafting new regulations in response to Edwards that would moot Deay's claim. In January 2019, the department informed our court it had adopted regulations to allow parole consideration for inmates such as Deay who were serving life terms under the three-strikes law for nonviolent offenses. Since the new regulations provided Deay parole consideration, we dismissed Deay's habeas petition as moot.
In August of 2020, Deay filed the current petition for writ of habeas corpus, explaining that he had not received a Proposition 57 parole hearing. Deay included with his petition a series of notices he received from the department that were issued after we dismissed his prior petition as moot. On February 29, 2019, the department notified Deay that he was eligible for the "Indeterminately-Sentenced Nonviolent Offender Parole Review Process." Then, on March 1, 2019, the department provided Deay with another notice stating he had been referred to the parole board for a parole consideration hearing. The notice stated the board would conduct a "jurisdictional review" to "double-check to make sure you are eligible for the Indeterminately-Sentenced Nonviolent Offender Parole Hearing Process." According to the notice, if the board determined Deay was parole-eligible, it would schedule him for a parole consideration hearing within 12 months.
Deay did not receive a parole hearing during the next 12 months. Instead, on March 1, 2020, the department provided Deay with a new notice stating he would not be referred to the parole board for a hearing because he had been scheduled for a parole hearing in the past or will be scheduled for a parole hearing in the next year under a different law. The department was referencing the fact that in September 2020 Deay would become eligible under the parole program for elderly inmates (see Pen. Code, § 3055) and had been scheduled for a parole hearing under that program for March of 2021.
We requested a preliminary opposition. The Attorney General initially responded that we should deny Deay's petition without prejudice to filing a petition in the Third Appellate District, which encompasses Shasta County. We requested a second response in which we asked the Attorney General to provide us with the date of Deay's next parole hearing. We stated that if Deay's next parole hearing was not scheduled to occur within the next 60 days, we intended to issue an order to show cause "returnable to this court on an expedited basis, on the ground that petitioner has been denied a parole hearing in contravention of the regulations governing parole hearings for nonviolent offenders." The Attorney General promptly informed us that Deay's next parole hearing would be held pursuant to the elderly parole program on March 12, 2021.
Because March 12, 2021 was not within 60 days of our notice, we issued an order to show cause returnable to this court on the issue of whether the department "has denied petitioner a parole hearing in contravention of Proposition 57 (Cal. Const., art. I, § 32) and/or the regulations of the [department] and Board of Parole Hearings relating to nonviolent offender parole hearings." We appointed counsel for Deay, who filed a supplemental habeas petition on his behalf. The Attorney General filed a return, and Deay filed a traverse. The matter is now before us for decision.
Deay also argues in his habeas petition that his life sentence amounts to cruel and unusual punishment under the state and federal constitutions. (See Cal. Const., art. I, § 17; U.S. Const., 8th Amend.) By limiting the order to show cause to Deay's claim that he has been wrongfully denied a parole hearing, we made "an implicit determination that a prima facie case has not been made as to other issues presented in the petition for writ of habeas corpus." (People v. Bloyd (1987) 43 Cal.3d 333, 363.) Deay's petition is therefore denied as to his claim that his life sentence amounts to cruel and unusual punishment.
DISCUSSION
1. Deay's petition is properly before this court.
We first address the Attorney General's contention that we should deny Deay's petition without prejudice to Deay refiling the petition in the Third Appellate District. The Attorney General observes that Deay is in custody pursuant to a conviction from Shasta County, which lies within the Third Appellate District. (See Cal. Rules of Court, rule 8.385(c)(1)) ["A Court of Appeal may deny without prejudice a petition for writ of habeas corpus that is based primarily on facts occurring outside the court's appellate district, including petitions that question . . . [¶] . . . [t]he validity of judgments or orders of trial courts located outside the district."].) The Attorney General notes further that in June of this year, the Shasta County Superior Court denied a habeas petition filed by Deay in which he argued he was entitled to a parole hearing under Proposition 57.
Deay's petition may properly be heard by this court. Like all courts of appeal in this state, this court has original jurisdiction over habeas corpus proceedings. (See Cal. Const., art. VI, § 10 ["The Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in habeas corpus proceedings."]; In re Roberts (2005) 36 Cal.4th 575, 582 [state constitution grants " 'statewide jurisdiction' " to courts of appeal in habeas matters].) There is ample reason to exercise that jurisdiction here. Contrary to the Attorney General's assertion, Deay's petition does not concern the validity of his Shasta County conviction. The petition asserts that the department has denied him a parole hearing in contravention of Proposition 57 and the department's own regulations. The First Appellate District—which encompasses Solano County, where Deay is housed at the California Medical Facility—is no less equipped than the Third Appellate District to decide this issue. Moreover, this court is likely better situated to decide Deay's petition since we are already familiar with his circumstances from our review of his prior habeas petition in 2018. In response to that petition the department represented to this court that Deay would be eligible for parole consideration under the department's revised regulations. This petition is essentially a continuation of the prior proceeding.
2. Deay is entitled to a Proposition 57 parole hearing.
Deay challenges the validity of the regulations that the department applied to deny him a Proposition 57 parole hearing. He argues that the department's regulations impair the scope of Proposition 57 by postponing his parole hearing until more than four years after passage of Proposition 57. He argues that the regulations contravene Proposition 57 because they deny him a parole hearing simply because he became eligible for a parole hearing under the elderly parole program.
We agree with Deay that he is entitled to a Proposition 57 parole hearing without further delay. We do not question the validity of the department's regulations, but the department has not applied those regulations correctly in this case.
The department adopted the regulations in 2018 to comply with Edwards. Under these regulations, the department begins the parole process for life-term inmates by conducting an "eligibility" review to determine whether the inmate should be classified as a nonviolent offender. (§ 3496, subd. (e).) Inmates classified as nonviolent offenders are assigned a "nonviolent parole eligible date," which the department calculates based on the full term of an inmate's primary offense, minus time served. (§ 3495, subd. (f); § 3496, subd. (e)(3).) Eligible inmates "shall be referred to the Board of Parole Hearings at least 180 calendar days prior to their nonviolent parole eligible date unless they have previously been scheduled for a parole consideration hearing under any other provision of law or will be eligible for a parole consideration hearing under any other provision of law within the next 12 months." (§ 3497, subd. (a).)
Once an inmate is referred to the parole board, the regulations require a parole officer to review the inmate's case and, within 15 calendar days, "determine whether the board has jurisdiction to schedule the inmate for an initial parole consideration hearing." (§ 2449.31, subd. (a).) The board has such jurisdiction if "(1) The inmate is eligible for a parole consideration hearing under section 3496 . . . ; and [¶] (2) The inmate has not previously been scheduled for a parole consideration hearing under any other provision of law and is not eligible for a parole consideration hearing under any other provision of law during the 12 months following the date of the referral screening under Section 3497 . . . ." (§ 2449.31, subd. (b).)
If the parole officer determines the board has jurisdiction, the parole board must schedule a hearing. (§ 2449.31, subd. (d).) For inmates whose nonviolent parole eligible date has passed, they "shall be scheduled for an initial parole consideration hearing within one year from the date of his or her referral to the board." (§ 2449.32, subd. (a)(2).) Moreover, "the board shall, by no later than December 31, 2021, schedule all parole consideration hearings for indeterminately-sentenced nonviolent offenders who are eligible for an initial parole consideration hearing on or before December 31, 2021, as a result of this article. Indeterminately-sentenced nonviolent offenders who, as of January 1, 2019, have been incarcerated for 20 years or more and who are within five years of their minimum eligible parole date shall be scheduled for an initial parole consideration hearing on or before December 31, 2020." (§ 2449.32, subd. (b).)
In this case, the department informed Deay in February 2019 that he was eligible for the parole review process for indeterminately sentenced nonviolent offenders. The department's notice informed Deay that his nonviolent parole eligible date was September 24, 2001. On March 1, 2019, the department provided another notice to Deay stating he had been referred to the parole board for a parole consideration hearing. The department informed Deay that, pursuant to section 2449.31, the board would conduct a jurisdictional review to confirm his parole eligibility. The notice stated further that if the board determined Deay was parole eligible, it would schedule Deay for a parole consideration hearing within 12 months, as required by section 2449.32. Deay presumably passed the jurisdictional review, as the Attorney General has not asserted otherwise. Thus, under the regulations, the board should have scheduled a parole hearing for Deay within 12 months of March 1, 2019, the date the department referred him to the parole board. (§ 2449.32, subd. (a)(2).)
There is nothing in the record stating whether Deay passed the jurisdictional review, but the record indicates that Deay does satisfy the requirements to proceed to a parole hearing. There is no dispute that he meets the criteria of a nonviolent offender under section 3496. (See § 2449.31, subd. (b)(1).) And at the time he was referred to the parole board in March of 2019, he was not scheduled for a parole hearing under any other provision of law and was not eligible for a parole consideration hearing under any other provision of law during the 12 months following the date of the referral. (See § 2449.31, subd. (b)(2).)
Deay did not receive a parole hearing within 12 months, or at all. Instead, on March 1, 2020, the department notified him that he would become eligible for parole under the elderly parole program on September 25, 2020, and would receive a hearing under that program in March of 2021.
The March 1, 2020 notice states Deay would not be referred to the parole board for a hearing because he had "been scheduled for a parole hearing in the past or will be scheduled for a parole hearing in the next year." The department's own records show this is wrong, as the parole hearing under the elderly parole program is scheduled for March 14, 2021, more than one year past March 1, 2020. Although the timing of the elderly parole hearing contradicts the department's notice to Deay, the regulation states inmates will not receive a Proposition 57 parole hearing if "they have previously been scheduled for a parole consideration hearing under any other provision of law or will be eligible for a parole consideration hearing under any other provision of law within the next 12 months." (§ 3497, subd. (a), italics added.). Deay became eligible for elderly parole in September 2020, within a year of March 2020 but not of March 2019. --------
Section 3497 does state that an inmate will not be referred to the parole board for a Proposition 57 parole hearing if the inmate will be eligible for a parole hearing under another provision of law within 12 months of the referral. (§ 3497, subd. (a).) However, when the department notified Deay on March 1, 2020 that he would not then be referred to the parole board, the department had previously referred him to the parole board one year earlier, on March 1, 2019. Counting from March 2019, Deay's elderly parole eligibility date of September 25, 2020 was 16 months later, so that the exception in section 3497 for inmates scheduled for a parole hearing within 12 months was inapplicable.
Thus, by applying the exception in section 3497 to deny Deay a Proposition 57 parole hearing, the department misapplied its own regulations. The department, of course, must abide by its own regulations and may not apply them in an arbitrary manner. (See In re Fratus (2012) 204 Cal.App.4th 1339, 1351-1352 [department required to follow own regulation allowing inmates to cross-examine correctional officers].) Had the department followed its regulations, Deay would have been reviewed for parole no later than March 1, 2020.
The Attorney General defends the department's actions based on the provision in section 2449.32 setting forth the deadline for the parole board to review all parole-eligible nonviolent offenders serving life sentences. The provision states: "Notwithstanding subsection (a) the board shall, by no later than December 31, 2021, schedule all parole consideration hearings for indeterminately-sentenced nonviolent offenders who are eligible for an initial parole consideration hearing on or before December 31, 2021, as a result of this article. Indeterminately-sentenced nonviolent offenders who, as of January 1, 2019, have been incarcerated for 20 years or more and who are within five years of their minimum eligible parole date shall be scheduled for an initial parole consideration hearing on or before December 31, 2020." (§ 2449.32, subd. (b).) The Attorney General explains that Deay is not within five years of his minimum eligible parole date—February 27, 2027— and argues that therefore the board had until December 31, 2021 to schedule him for a hearing. Because the Board could wait until December 2021 to provide Deay with a nonviolent offender parole hearing, the Attorney General asserts, "Deay will receive an elderly parole hearing approximately nine months earlier than he would have been entitled to receive a nonviolent parole consideration hearing."
The Attorney General's argument overlooks the fact that under the regulations Deay was entitled to a hearing well before December 31, 2021. His referral for a parole hearing in March 2019 triggered the requirement in section 2449.32 that the hearing take place within 12 months. (See § 2449.32, subd. (a)(2)).) The outside catch-all date of December 31, 2021 does not supersede those provisions requiring an earlier hearing date. The Attorney General's contention would transform the major portion of the regulations directing the timing of parole hearings into nothing more than aspirational target dates. (See In re Lusero (1992) 4 Cal.App.4th 572, 575 [although courts afford "great deference" to agency expertise, " 'where the agency's interpretation of the regulation is clearly arbitrary or capricious or has no reasonable basis, courts should not hesitate to reject it' "].) Moreover, such an interpretation would belie the department's own actions. The notice provided to Deay in March 2019 stated the department would schedule a parole hearing within 12 months, not sometime before December 31, 2021.
At oral argument, the Attorney General elaborated a number of new arguments that were not raised in the parties' briefing. First, the Attorney General offered a new interpretation of section 2449.32, asserting that subdivision (a)(2) applies only to inmates who are eligible for a nonviolent parole hearing after December 31, 2021. Because Deay was eligible for a nonviolent parole hearing prior to December 31, 2021, the Attorney General claims Deay is subject to subdivision (b), which only requires the parole board to schedule a hearing prior to December 31, 2021. The Attorney General's interpretation is untenable. Subdivision (a) in no way states it is limited to inmates who become parole eligible after December 31, 2021. What it does state is that it applies to inmates whose nonviolent parole eligible date was in the past at the time they were referred to the parole board. The regulation cannot be limited to inmates who become parole eligible at a future date when it applies to inmates whose parole eligible date was in the past.
The Attorney General also claimed for the first time at oral argument that the department's March 1, 2019 notice to Deay contained an erroneous statement that Deay would be receiving a hearing within 12 months. The Attorney General asserts it corrected this error in June of 2019, by sending Deay another letter stating his hearing would take place on or before December 31, 2021. The June 2019 letter, which the Attorney General first provided to this court after oral argument, simply recites section 2449.32, subdivision (b)'s catch-all provision that all parole hearings for inmates eligible prior to December 31, 2021, must occur on or before that date. The letter does not purport to retract the representation made to Deay three months earlier that he was referred to the parole board and would receive a parole hearing within 12 months. Nor could the letter supersede the directive in section 2449.32, subdivision (a)(2) for the parole board to hold a hearing within 12 months after the department referred Deay for a parole hearing.
Finally, the Attorney General raised the concern that there would be difficulties in scheduling hundreds of parole hearings within the framework of the regulations as interpreted in this opinion. We do not doubt or minimize these difficulties; it may be that the regulations require revision in order to accommodate practical limitations, but the solution is not to disregard or misinterpret the current regulations. We trust that a hearing can and will be scheduled for Deay in compliance with this court's opinion without denying any other inmate a scheduled hearing to which the other inmate is also entitled, even if compliance will require four rather than three hearings in a single day.
Deay was entitled to a Proposition 57 parole hearing no later than March 1, 2020. The department must provide him with a hearing without further delay. Although compliance with this directive at this late date will only minimally advance Deay's presently scheduled hearing, Deay is entitled to no less, and this decision should preclude similar duplicate postponements in the future.
DISPOSITION
The board of parole hearings is directed to promptly review Deay for parole consideration, no later than 30 days from the issuance of this decision. The court expresses no opinion whether the parole board should grant parole. This decision will become final within seven days of its issuance.
POLLAK, P. J. WE CONCUR: STREETER, J.
BROWN, J.