Opinion
G055786
10-11-2019
In re JOHN FITZGERALD KIEFER on Habeas Corpus.
Sharon Petrosino, Public Defender, David Dworakowski and Sara Ross, Assistant Public Defenders, Brian Reznick and Scott Kawamoto, Deputy Public Defenders for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General, Amanda J. Murray, Rachael A. Campbell and Krista L. Pollard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 95NF1988) OPINION Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Petition dismissed. Sharon Petrosino, Public Defender, David Dworakowski and Sara Ross, Assistant Public Defenders, Brian Reznick and Scott Kawamoto, Deputy Public Defenders for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General, Amanda J. Murray, Rachael A. Campbell and Krista L. Pollard, Deputy Attorneys General, for Plaintiff and Respondent.
John Fitzgerald Kiefer filed a petition for writ of habeas corpus seeking relief pursuant to Proposition 57's early parole eligibility provision. Circumstances subsequent to Kiefer's habeas petition have rendered his petition moot. We now discharge our order to show cause and dismiss the petition as moot.
FACTS
In 1997, a jury convicted Kiefer of sale or transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)). Additionally, it was found true he suffered a prior prison term (Pen. Code, § 667.5, subd. (b), all further statutory references are to the Penal Code), and two prior strike convictions (§§ 667, subds. (d), (e)(2), 1170.12, subds. (b), (c)(2)), offenses that required lifetime registration pursuant to section 290. The trial court sentenced Kiefer to prison for 26 years to life under the "Three Strikes" law.
In November 2016, the voters passed Proposition 57, The Public Safety and Rehabilitation Act of 2016, which added a provision to California's Constitution stating: "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." (Cal. Const., art. I, § 32, subd. (a)(1), hereinafter referred to as Section 32.) Section 32, subdivision (a)(1)(A), defined the "full term for the primary offense," but Section 32 did not define "nonviolent felony offense." Section 32, subdivision (b), authorized the California Department of Corrections and Rehabilitation (CDCR) to adopt regulations to implement the early parole eligibility provision.
In April 2017, the CDCR adopted emergency regulations. California Code of Regulations (CCR), title 15, section 3490 defined violent felony (CCR, tit. 15, § 3490, subd. (c)), and nonviolent offender (CCR, tit. 15, § 3490, subd. (b)). CCR, title 15, section 3490, subdivision (a), also defined who a nonviolent offender excluded. "A "[n]onviolent [o]ffender" is an inmate who is not any of the following: [¶] (1) Condemned, incarcerated for a term of life without the possibility of parole, or incarcerated for a term of life with the possibility of parole; [¶] (2) Serving a term incarceration for a "violent felony;" or [¶] (3) Convicted of a sexual offense that requires registration as a sex offender under . . . section 290."
Four months later, Kiefer filed a petition for writ of habeas corpus in the Orange County Superior Court. The trial court denied the habeas petition because Kiefer did not exhaust his administrative remedies.
A few months later, Kiefer filed a petition for writ of habeas corpus in this court. He argued the CDCR's exclusion of persons who are serving life sentences or who are section 290 registrants contravened Proposition 57's intent. The Attorney General filed an informal response, and Kiefer filed an informal reply.
In May 2018, the CDCR enacted revised regulations. The revised regulations stated an inmate was not eligible for early parole eligibility if the inmate was serving "a term of life with the possibility of parole for an offense that was not a violent felony" or the inmate was a section 290 registrant. (CCR, tit. 15, § 3491, subd. (b)(1), (3).) In supplemental briefing, the parties agreed Kiefer was excluded from early parole eligibility pursuant to these regulations.
After we issued an order to show cause, the Second District Court of Appeal, Division Five filed its opinion in In re Edwards (2018) 26 Cal.App.5th 1181 (Edwards). That court held the CDCR's regulation that made inmates, like Kiefer, who were serving an indeterminate life term for a non-violent offense ineligible for early parole consideration—CCR, title 15, section 3491, subdivision (b)(1)—was inconsistent with Section 32 and thus void. (Edwards, supra, 26 Cal.App.5th at pp. 1192-1193.)
In his return, the Attorney General acknowledged the Edwards court's holding, and preserved that issue for further review, but argued Kiefer was still excluded from early parole consideration because he was a section 290 registrant.
In response to Edwards, the CDCR adopted emergency regulations effective January 1, 2019. CCR, title 15, section 3496, subdivision (a), states, "An 'indeterminately-sentenced nonviolent offender,' . . . shall be eligible for a parole consideration hearing by the Board of Parole Hearings . . . . " (See CCR, tit. 15, § 3495, subd. (a) [defines "'indeterminately-sentenced nonviolent offender'"].)
In his traverse, Kiefer contended the CDCR's regulations unlawfully excluded section 290 registrants from early parole eligibility (CCR, tit. 15, § 3491, subd. (b)(3)). However, based on Edwards and the CDCR's emergency regulations, he conceded his claim the CDCR's regulations unlawfully excluded persons serving life sentences was moot.
A few weeks later, the Second District Court of Appeal, Division Five filed its opinion in In re Gadlin (2019) 31 Cal.App.5th 784 (Gadlin). The Gadlin court held the CDCR's regulation that made inmates, like Kiefer, who were section 290 registrants based on a prior offense—CCR, title 15, section 3491, subdivision (b)(3)—was inconsistent with Section 32 and thus void. (Gadlin, supra, 31 Cal.App.5th at p. 790.) The majority in Gadlin did not reach the issue of whether inmates currently serving a sentence for a sex offense may be excluded from early parole consideration. (Ibid.)
The Attorney General filed an application for leave to submit supplemental briefing on the following matters: the CDCR's emergency regulations; Edwards and Gadlin; and the effect of Kiefer's May 9, 2019, parole suitability hearing. Because we had previously placed the matter on the May 2019 oral argument calendar, we took the matter off calendar and ordered the parties to file supplemental letter briefs on the issue of whether Kiefer's scheduled parole suitability hearing rendered his petition moot. Before the parties filed their supplemental letter briefs, the California Supreme Court granted review in Gadlin. (Gadlin, supra, 31 Cal.App.5th 784, review granted May 15, 2019, S254599.)
In his supplemental letter brief, Kiefer argued the petition was not moot because although at his May 9, 2019, parole suitability hearing he stipulated to unsuitability for three years, that was a section 3000 parole hearing and not a Proposition 57 parole hearing. Additionally, he asserted the issue is of great public importance.
In his supplemental letter brief, the Attorney General contended a Proposition 57 parole hearing is the same as a section 3040 parole hearing and Kiefer stipulated he was unsuitable. Additionally, the Attorney General asserted we should decline Kiefer's request to issue an opinion because the California Supreme Court will resolve the issue in Gadlin. In a separate motion, the Attorney General requested we hold the case in abeyance until the California Supreme Court issues its opinion in Gadlin if we conclude the petition is not moot. Kiefer did not file a supplemental reply brief.
DISCUSSION
"It is settled that '[a]n action that involves only abstract or academic questions of law cannot be maintained. [Citation.]' [Citation.] Moreover, '"[A]n action that originally was based on a justiciable controversy cannot be maintained . . . if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and [such cases] will therefore be dismissed." [Citation.]' [Citation.]" (People v. DeLong (2002) 101 Cal.App.4th 482, 486.)
In its supplemental letter brief, the Orange County Public Defender (Public Defender) concedes that on May 9, 2019, Kiefer had a parole suitability hearing where he stipulated to unsuitability for three years. The Public Defender adds though it is her "belief" this was a parole hearing pursuant to section 3000 and not Proposition 57 and the processes are different. She asserts, "The CDCR certainly considered the parole process to be separate from the already existing parole process: they created a new parole process with different regulations, a different review process, and different factors regarding suitability for release from the already existing parole system."
CCR, title 15, section 2449.32, subdivision (c), which the CDCR adopted as part of its January 2019 emergency regulations, states, "Hearing panels shall conduct parole consideration hearings for indeterminately-sentenced nonviolent offenders in compliance with the requirements for initial and subsequent parole consideration hearings described in this Division, section 3040 et seq., and applicable case law." Thus, the processes are the same.
At his May 9, 2019, parole hearing Kiefer stipulated he was unsuitable for parole for three years. Because the Board of Parole Hearings panel would conduct a parole hearing under both section 3040 et seq. and Proposition 57 pursuant to the same requirements, reversal here would be without practical effect and the petition is moot. Therefore, we need not hold the case in abeyance.
DISPOSITION
The order to show cause is discharged, and the petition for writ of habeas corpus is dismissed as moot.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. THOMPSON, J.