Opinion
H036382
11-15-2011
In re P.F. LAZOR, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 87874)
The superior court granted P.F. Lazor habeas relief, concluding that its March 25, 2008 order, that had remanded the matter to the Board of Parole Hearings (Board) to conduct a new parole suitability hearing, was not satisfied by a June 9, 2009 parole hearing. At issue was language in the March 25, 2008 order that required the Board to hold the court-ordered hearing within 35 days after Lazor's demand for it. We agree with appellant warden that the March 25, 2008 remand order did not provide respondent Lazor with open-ended authority to make or retract a demand whenever he wished and the superior court erred in determining that the parole suitability hearing held on June 9, 2009 could not qualify as the court-mandated hearing. We reverse.
I. Procedural Background and Facts
On March 25, 2008, Judge Rene Navarro issued an order remanding the matter of In re P.F. Lazor (on Habeas Corpus) to the Board with directions to conduct a new parole suitability hearing and to proceed in accordance with due process. The order further stated: "Regarding Petitioner's allegation that the Board used invalid 115s and 128s against him, this is not a matter that can be properly resolved in this petition. Petitioner must exhaust his administrative remedies and thereafter may present any unsatisfactorily resolved issues to the Superior Court in the county in which he is confined. [¶] The new hearing herein ordered shall take place within 35 days after Petitioner presents a demand for it to the Board. The scheduling of Petitioner's hearing is left in Petitioner's discretion so that he may take what actions and time he desires to resolve his issues with the 115s and 128s." The order also forbid the Board from "invoke[ing] unsuitability factor 2402(c)(1) in Petitioner's case unless different evidence is presented."
We take judicial notice of this court's records in H032842, an appeal from the March 25, 2009 order. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
California's Code of Regulations provides: "All relevant, reliable information available to the panel shall be considered in determining suitability for parole." (Cal. Code Regs., tit. 15, § 2402, subd. (b).) Code of Regulations, title 15, section 2402, subdivision (c)(1), provides that the nature of the commitment offense may be one of the circumstances tending to show unsuitability for parole.
The acting prison warden of Mule Creek State Prison appealed from the March 25, 2008 order. In an opinion filed April 7, 2009, this court agreed that Lazor was entitled to a new parole suitability hearing before the Board (In re Lazor (2009) 172 Cal.App.4th 1185, 1191, 1199-1204 (Lazor))but we determined that the remand order improperly restricted the Board's exercise of discretion. (Id. at pp. 1199, 1204.) We modified the superior court's remand order to "direct the Board to reconsider [Lazor's] parole suitability in light of In re Lawrence, supra, 44 Cal.4th 1181 . . . and In re Shaputis, supra, 44 Cal.App.4th 1241" and "to omit all restrictions upon the Board's full exercise of its discretion under law," and affirmed the order as modified. (Id. at p. 1204.) We directed the court upon remand to "forward a copy of the order as modified to the Board." (Ibid.)This court issued the remittitur on June 9, 2009. (See Cal. Rules of Court, rule 8.272(d)(1).)
In the remittitur, the Clerk of the Court certified that "the attached is a true and correct copy of the original opinion or decision entered in the above-entitled cause on April 7, 2009, and that this decision has now become final."
All further references to rules are to the California Rules of Court.
Also, on June 9, 2009, a subsequent parole consideration hearing was held before Presiding Commissioner Lea Ann Chrones and Deputy Commissioner Scott Moeszinger. Chrones announced at the outset of the hearing that it was a subsequent parole consideration hearing. After other persons present introduced themselves for the record, Chrones further stated that "this hearing is being held in compliance with a court order, that was the Court of Appeal, State of California, Sixth Appellate District under number H, as in Harry, 032842, and that was filed on April 7th, 2009." At the hearing, the Lazor disposition was read into the record. After a lengthy hearing, Lazor was found unsuitable for a grant of parole. It was determined that an additional seven years of incarceration was necessary.
On June 29, 2009, the superior court filed an "order" stating: "Pursuant to the order of the Sixth District in H032842, this Court's [March 25, 2008] order granting Petitioner habeas relief is modified such that the Board is directed to reconsider Petitioner's parole suitability in light of In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241 and is further modified to omit all restrictions upon the Board's full exercise of its discretion under law."
On August 4, 2009, Lazor filed an "Emergency Motion for Finding of Contempt of Court and for Imposition of Sanctions, and for Immediate, Emergency Remedy of Status including Imminent Death of Prisoner, Caused by the Contemptous [sic] Conduct, and for Emergency Stay against Respondents." Chrones, Moeszinger, Robert Doyle, the Board of Parole Hearings, and Warden Kelly Harrington, were named as the respondents. In the motion papers, filed in propia persona, Lazor complained that, among other things, he had been given inadequate notice that the hearing was the court-ordered rehearing, Chrones had a "grave conflict of interest" because Lazor had made "multiple complaints" against her husband, who was a former warden, and he was "denied his fundamental right to ask questions of the panel, at any time during the hearing." The remainder of the motion concerned Lazor's "extreme hypersensitivity to environmental chemicals, especially in water and foods" and Kern Valley State Prison's environmental problem with "organ-damaging/maiming/death-causing excessive levels of ARSENIC in its water, and thus also in almost all its foods (made with the tap water)." Lazor requested an immediate stay to prevent the parole denial decision from being finalized, other relief to get him "out of harm's and death's way," and contempt sanctions against the respondents.
On August 7, 2009, the superior court issued an "order" denying Lazor's "motion" without prejudice. It advised that to the extent Lazor was challenging the Board's decision, "he must file a habeas corpus petition in the county in which his conviction occurred and include a copy of the hearing transcript." But "[t]o the extent he challenges the pre hearing procedures he must file his grievance or petition in the county in which the events occurred."
On August 7, 2009, Lazor filed a "Motion for Court to Compel Complaince [sic] With Their Previous Order Regarding Parole Hearing." He asserted in the motion that the Board violated Judge Navarro's March 25, 2008 order by designating the June 9, 2009 hearing as the court-ordered hearing because he had not yet made a demand for that hearing. He claimed that during the appeal process, "CDCR spewed out more bogus RVRs [Rules Violation Reports] . . . ." He indicated that he thought that the June 9, 2009 hearing was the regularly scheduled hearing and he did not learn that it was the court-ordered hearing until he was at the hearing. He claimed that, in addition to the lack of notice, in he was deprived of his right to clear up the "as of yet unappealed" RVRs. Lazor requested the court to "abrogate the 6-9-09 hearing." The proof of service contains a declaration under penalty of perjury indicating that the motion had been served on the Attorney General (A.G.) and Santa Clara County District Attorney by mail.
On August 28, 2009, Lazor filed a verified "Special Petition for Court's Intervention Comparable to an Interlocutory Appeal, to Avert and Remedy Irreparable Damages Prior to Pending Parole Hearing" against the Board. A second file stamp indicates that it had been previously filed in Kern County on July 2, 2009. The petition began, "This is a special petition (call it habeas corpus, or prohibition and/or mandamus, or otherwise . . .)" and asked the court to "[a]ct immediately prior to the June 9, 2009 scheduled parole hearing . . . ." He sought orders (1) compelling the Board to timely hold parole hearings and to allow him a full review of his prison files and to provide him with necessary documents and (2) prohibiting the Board from continuing or delaying the pending hearing and from using an allegedly fraudulent psychological report and sought related relief.
On September 18, 2009, Lazor filed a "Motion to Refrain from Converting or Characterizing this Mandamus/Prohibition Petition as a Habeas Corpus Petition, and Objection to Conversion" and referred to a writ petition and request for emergency stay. He also filed a proposed "Alternative Writ of Mandamus, and Writ of Prohibition" for a judge's signature. The proposed writ was to prevent the June 9, 2009 parole decision from being affirmed by the Board's Decision Review Unit and compel the Board to vacate that decision and hold a new hearing.
On July 13, 2009, Lazor filed a "Petition for Writ of Mandmus (In Part); And Petition for Writ of Probition (In Part) (Preemptory and Alternative) and Request for Immediate/Emergency Stay of BPH Decision Review Unit Finalizing the BPH's 6-9-09 Parole Denial Decision" in Kern County Superior Court. The appellate record does not show that the petition was filed in Santa Clara County.
On October 2, 2009, the court issued an "Order for an Informal Response," which stated that "[b]y way of several submissions Petitioner [Lazor] asserts that the Board has provided Petitioner with his next regularly scheduled hearing and has told him that it will also be considered as being the court ordered hearing." The court declared: "This would be a violation of the now final and binding court order if Petitioner had not exercised his right to set the timing of the hearing." The court requested an informal response as to the Board's position on Lazor's right to set the timing of the hearing and on the authority of the court to consider Lazor's prehearing procedural challenges.
On November 16, 2009, the A.G. filed an informal response. The A.G. objected to the order for an informal response because Lazor had not filed a petition for writ of habeas corpus in the Santa Clara County Superior Court and the court had not declared that it considered any of Lazor's submissions to be a petition for writ of habeas corpus. In any event, the A.G. asserted that "Lazor's submissions addressing pre-hearing issues should [be] filed in the county of his confinement, namely, Kern County." The A.G. also maintained that "on April 14, 2008, Lazor requested his court-ordered hearing" and, therefore, "[t]he Board's June 9, 2009 hearing was in compliance with the court orders in this case" because "it was reasonable to conclude that Lazor's April 14, 2008 request was still in effect."
On November 20, 2009, Lazor filed an over 50-page "Motion for Immediate Injunction as Necessary Emergency Measure to Check Respondents' New Campaign of Terrorizing Petitioner as Reprisals for Judge Navarro's Past and Presently Pending Favorable Court Orders." The Board of Parole Hearings, CDCR Director Matt Cate, and Kelly Harrington, the warden of Kern Valley State Prison (KVSP), were named as the respondents.
Lazor apparently also submitted a "Time-Critical Motion to Stop the Imminent Willful Destruction of Crucial Parole Case Evidence, Irreparably," dated December 2, 2009, to Judge Navarro.
On January 5, 2010, Lazor filed an over 50-page motion, entitled "Special Interim Motion Needing Determination Prior to [His] Reply Due Date of January 2, 2010; Requesting As Necessary Prerequisite, an Evidentiary Hearing and Appointment of Counsel, and Expansion of Honorable Judge Rene Navarro's 2 October 2009 Pending 'Order for Informal Response.' "
On February 23, 2010, Lazor filed a reply to the A.G.'s informal response. Attached to the reply was a form "Inmate Request for Interview," which was dated "25 May 2009." In the space for the reason for the requested interview, the following was typed: "This is notice to Robert Doyle, all BPH personnel, BPH DESK, et al, that I'm hereby withdrawing my request to proceed with the court-ordered hearing that's pending & tangled up with my regularly scheduled hearing. I've been issued new RVRs (Rule Violation Reports) since I requested to hold the hearing per court order, which I now wish to try to access to & clear up before the court-ordered hearing. So, let's proceed ONLY with the regular[ly] scheduled hearing presently." There is no date-receipt stamp on the form or other indication that the Board ever received it.
On January 14, 2010, the superior court issued an "Order to Show Cause" (OSC) indicating that it was construing Lazor's submissions as a petition for writ of habeas corpus. It denied "all pending submissions and requests" "except the question whether Petitioner is entitled to a new hearing pursuant to the Superior Court order upheld in In re Lazor (2009) 172 Cal.App.4th 1185 and specific enforcement of the directive that the timing of the hearing may be set at Petitioner's discretion."
The A.G., on behalf of appellant, filed a return on June 26, 2010. The return set forth the procedural history and stated, among other things, that "[i]n a letter to the Board dated April 14, 2008, Lazor invoked his right to a hearing within 35 days" and a copy of the letter was attached as an exhibit. It asserted that "because the remittitur issued on the same day the court-ordered hearing was held, Lazor's prior request for the court-ordered hearing was in effect and the June 9, 2009 hearing satisfied [the superior court's] May 25, 2008 order." In the return, it was specifically denied that Lazor had "established that, on May 25, 2009 or at any time before his June 9, 2009 hearing, Lazor submitted a retraction of his request to have a court-ordered hearing to the Board, or that the Board ever received a retraction or was otherwise aware of a retraction."
The return indicated that, at the June 9, 2009 hearing, Lazor did not object to the hearing on the ground that he had not yet requested the court-ordered hearing. The return further stated that Lazor received all the due process to which he was entitled in the June 9, 2009 hearing. In any case, it asserted that the remedy for any delay of that hearing beyond 35 days following this court's April 7, 2009 Lazor opinion would have been to hold the court-ordered hearing but that had been done. It also asserted that the writ proceeding was "moot because Lazor requested a hearing on April 14, 2008 and the Board held a hearing on June 9, 2009."
The return also stated that "the only document that could fairly be considered a petition for writ of habeas corpus addressing the issue this Court identified in its January 14, 2010 order to show cause" was the August 7, 2009 " 'Motion for Court to Compel Complaince [sic] with Their Previous Order Regarding Parole Hearing.' " It asserted that the motion was deficient as a habeas petition because it was not verified.
The traverse to the return was filed on September 27, 2010. The following statements of fact in the return were not disputed and were deemed true. (See People v. Duvall (1995) 9 Cal.4th 464, 477.) Lazor was convicted of second degree murder with use of a handgun and sentenced to 17 years to life. The March 25, 2008 order directed the Board to hold a new parole hearing for Lazor within 35 days after Lazor presented a demand for the hearing to the Board. In a letter to the Board, dated April 14, 2008, Lazor invoked his right to a hearing within 35 days. Following the warden's appeal from the March 25, 2008 order, this court issued a stay order on May 7, 2008 and eventually this court modified the March 25, 2008 order and affirmed the order as modified. This court directed the superior court to forward a copy of the modified order to the Board. The remittitur issued on June 9, 2009. Lazor had a parole hearing on June 9, 2009. Lazor's claim was that the Board "improperly designated" the June 9, 2009 subsequent parole consideration hearing as the hearing ordered by the superior court in its March 25, 2008 order. On June 29, 2009, the superior court issued an order describing the modifications to its March 25, 2008 order.
The traverse denied that the June 9, 2009 hearing was the court-ordered hearing required by the modified March 25, 2008 remand order. In the traverse, Lazor asserted that his April 14, 2008 request for a hearing became "null and void when the supersedeas petition was granted" in the prior appeal. He also maintained that the June 9, 2009 hearing could not be the court-ordered hearing because "there was no enforcible [sic] order after appeal until [the superior court] issued its modification order of June 29, 2009" and because the June 9, 2009 hearing was "scheduled as a regular parole hearing, not as the court ordered hearing, as shown by" a "Notice of Hearing." The traverse denied that Lazor "somehow forfeited his right to a hearing" satisfying the March 25, 2008 order "by not objecting to the Board holding the June 9, 2009 hearing as a court-ordered hearing . . . ."
The traverse also admitted that Lazor's August 7, 2009 motion to compel compliance with the March 25, 2008 order could "fairly be considered to be a habeas petition . . . ." But it denied the allegation that the August 7, 2009 Motion to Compel was deficient as a petition for writ of habeas corpus because it was not verified. It asserted that it was verified by a declaration under penalty of perjury located "following the Proof of Service . . . ."
On October 12, 2010, Lazor filed a request for permission to file, in support of the traverse, a supplemental declaration of counsel and the "Inmate Request for Interview" form that had been attached to Lazor's informal reply, previously filed February 23, 2010. As indicated, that form was dated May 25, 2009 and contained the "notice" that Lazar was withdrawing his prior request to proceed with the court-ordered hearing. Lazor did not present any supporting documentary evidence that he had actually served the "notice" on the Board or the Board had actually received it prior to the June 9, 2009 hearing.
In an "order" filed October 21, 2010, superior court Judge Andrea Bryan stated: "For the reasons outlined in the order for an informal response and in the order to show cause, and also those presented by Petitioner and counsel for Petitioner, this Court makes a factual finding that Petitioner's subsequent parole consideration hearing held June 9, 2009 does not also qualify as the court ordered hearing which specifically allowed Petitioner to set its timing by making a 35 day request. Pursuant to that final and binding [March 25, 2008] order, upheld in In re Lazor (2009) 172 Cal.App.4th 1185, Petitioner is entitled to a hearing comporting with due process." The judge stated: "To the extent Respondent [now appellant] argues allowing Petitioner [Lazor] to set the timing of the hearing is onerous, or was an abuse of court's discretion or authority, the only possible answer to this is that Respondent has missed their opportunity to make those arguments by not including them within appeal H032842."
Kelly Harrington, Warden at KVSP, filed an appeal from the October 21, 2010 order. (See § 1507; rules 8.308(a), 8.388(a).)
Appellant's opening brief indicates that Lazor is now at California State Prison, Sacramento.
II. Discussion
Although the superior court concluded that the June 9, 2009 parole hearing did not satisfy the March 25, 2008 order as modified by this court on appeal, its reasoning and conclusion are fatally flawed. As will be explained, the Board was not precluded from proceeding on June 9, 2009 to comply with the superior court's March 25, 2008 order, as modified on appeal. A. Lazor's Request for the Court-Ordered Hearing
In his traverse, Lazor admitted the allegation that he requested the court-ordered hearing by a letter to the Board dated April 14, 2008. But Lazor denied the allegation that, prior to the June 9, 2009 hearing, Lazor had not "submitted a retraction" of that request to the Board and the Board had not received any such "retraction." Neither the petition nor the traverse was supported by any documentary evidence showing that the purported "notice" of withdrawal of his April 14, 2008 demand had been served on or received by the Board prior to June 9, 2009. (See People v. Duvall, supra, 9 Cal.4th at p. 474 [petition should contain "reasonably available documentary evidence supporting the claim, including . . . affidavits or declarations"].) We need not decide, however, whether Lazor's purported "notice" created a disputed factual issue requiring resolution in an evidentiary hearing. (See People v. Romero (1994) 8 Cal.4th 728, 739.) We conclude that the March 25, 2008 order cannot reasonably be construed as allowing Lazor to withdraw his demand for the court-ordered hearing because new disciplinary issues had arisen.
"[T]he 'same rules apply in ascertaining the meaning of a court order or judgment as in ascertaining the meaning of any other writing.' (L. A. Local, etc., Bd. v. Stan's Drive-Ins, Inc., 136 Cal.App.2d 89, 94 . . . .)" (In re Careaga's Estate (1964) 61 Cal.2d 471, 475.) " 'The language of a . . . [writing] is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.' (Civ. Code, § 1638.)" (Ibid.)"The interpretation of the effect of a judgment [or an order] is a question of law within the ambit of the appellate court. (Estate of Norris (1947) 78 Cal.App.2d 152, 159 . . . .)" (John Siebel Associates v. Keele (1986) 188 Cal.App.3d 560, 565.)
Here, the following language in the March 25, 2008 order is at issue: "The new hearing herein ordered shall take place within 35 days after Petitioner presents a demand for it to the Board. The scheduling of Petitioner's hearing is left in Petitioner's discretion so that he may take what actions and time he desires to resolve his issues with the 115s and 128s." That language is subject to our reasonable construction.
The evident purpose of the demand provision in the March 25, 2008 order was to allow Lazor sufficient time to challenge the allegedly "invalid 115s and 128s against him" that the Board had considered in the parole suitability hearing overturned by the order. Presumably, when Lazor made his April 14, 2008 request for a hearing, he had completed his challenge. Lazor's purported "notice" of withdrawal supports this presumption since it specifies that he had been issued new Rules Violation Reports that he wished to "clear up" before proceeding with the court-ordered hearing.
Minor misconduct by an inmate and the counseling provided is documented on a CDC Form 128-A, Custodial Counseling Chrono. (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).) Inmate misconduct that is believed to be a violation of law or that is not minor in nature is reported on a CDC Form 115 (Rev. 7/88), Rules Violation Report. (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)
The March 25, 2008 order cannot be reasonably construed as giving Lazor the unbridled power to set the court-ordered hearing whenever he so desired beyond the period needed to exhaust his administrative remedies and seek relief with regard to the allegedly "invalid 115s and 128s." (See Cal. Code Regs., §§ 3084.7 [administrative levels of appeal], 3084.8 [appeal time limits], 3084.9, subd. (g) [disciplinary appeals]; In re Arias (1986) 42 Cal.3d 667, 678 ["it is well settled that habeas corpus petitioners must exhaust available administrative remedies before seeking judicial relief"]; see also In re Clark (1993) 5 Cal.4th 750, 783 [petitioner must explain and justify any substantial delay in presenting a habeas corpus claim to avoid a procedural bar]; In re Robbins (1998) 18 Cal.4th 770, 780 ["Substantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim"].) It would be unreasonable to read the March 25, 2008 order as permitting Lazor to unilaterally and indefinitely delay his court-ordered hearing to challenge new rules violation reports and counseling chronos that were not within the contemplation of that order. (Cf. Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1238-1239 [superior court cannot "consider new claims not expressly or implicitly raised in the original habeas corpus petition or supported by the factual allegations in the original habeas corpus petition"].) Accordingly, the purported "notice" had no legal force or effect even if it was served on or received by the Board before June 9, 2009 because the March 25, 2008 order had no application to those new disciplinary matters. In view of this conclusion, we need not decide whether the forfeiture rule applies to Lazor's failure to object to the June 9, 2009 hearing on the specific ground that he had withdrawn his April 14, 2008 demand. B. Stay of Enforcement
Lazor's assertion in the traverse that his April 14, 2008 request for the court-ordered hearing was rendered "null and void when the supersedeas petition was granted" is legally incorrect. On May 7, 2008, this court granted a petition for writ of supersedeas in the matter of In re P.F. Lazor on Habeas Corpus (H032842) as follows: "Let the writ of supersedeas issue, staying pending this appeal, enforcement of the superior court's order filed on March 25, 2008, directing the Board of Parole Hearings to conduct a new parole suitability hearing for P.F. Lazor. This stay of enforcement of the superior court's order filed on March 25 2008, does not preclude the Board of Parole Hearings from conducting any regularly scheduled subsequent parole suitability hearing. This stay shall remain in effect until final determination of the appeal." (Italics added.) The purpose of staying the enforcement of the superior court's March 25, 2009 order was to preserve the status quo for the benefit of appellant, not respondent Lazor, and to protect our appellate jurisdiction. (See People ex rel. San Francisco Bay Conservation and Development Commission v. Town of Emeryville (1968) 69 Cal.2d 533, 537-538.) Nothing in our stay of enforcement voided Lazor's April 14, 2008 request for the Board to hold the court-ordered hearing pursuant to the March 25, 2008 order.
Lazor's claim that the stay of enforcement prevented the Board from acting while it was in effect is also not correct. Until the remittitur issued and the stay automatically dissolved, our stay of enforcement prevented the superior court from enforcing its March 25, 2008 order. But our stay did not bar the Board's voluntary compliance with the order as modified by this court's Lazor opinion. The clarification in our stay order that it did not preclude the Board from conducting any regularly scheduled parole suitability hearing did not necessarily mean that the June 9, 2009 hearing was a regularly scheduled hearing and not the court-ordered hearing. Lazor has not presented any authority that the hearing could not serve as both. C. Remittitur
Lazor contends on appeal that "issuance of the remittitur on June 9, 2009, the same day as the Board hearing, changed nothing because, as of that date, there was still no enforcible [sic] order on which the Board could have acted" and there was no enforceable order until the superior court made its June 29, 2009 "order." We reject this analysis.
Once the remittitur issued in In re Lazor on June 9, 2009, the stay of enforcement automatically terminated and the superior court again enjoyed jurisdiction to enforce its March 25, 2008 order as modified by this court on appeal. "[T]he essence of remittitur is the returning or revesting of jurisdiction in an inferior court by a reviewing court. The reviewing court loses jurisdiction at the time of remittitur and the inferior court regains jurisdiction. (See Kohle v. Sinnett (1955) 136 Cal.App.2d 34, 37 . . . .)" (Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10.) "Following appellate affirmance of a trial court judgment and issuance of a remittitur, 'the trial court is revested with jurisdiction of the case, but only to carry out the judgment as ordered by the appellate court.' (People v. Dutra (2006) 145 Cal.App.4th 1359, 1366 . . . ; see § 1265, subd. (a) [following receipt of remittitur, the trial court has jurisdiction to issue 'all orders necessary to carry the judgment into effect'].)" (People v. Picklesimer (2010) 48 Cal.4th 330, 337.)
"The remittitur is deemed issued when the clerk enters it in the record." (Rules 8.272(d)(1), 8.366(a).) The clerk is required to "immediately send the parties notice of issuance of the remittitur, showing the date of entry." (Ibid.)Anyone can register for automatic e-mail notifications about a case before a California appellate court and receive automatic e-mail notification when the remittitur has issued. The appellate record does not show that the Board knew that the remittitur had issued on June 9, 2009.
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The superior court's June 29, 2009 order, ostensibly modifying its March 25, 2008 order in accordance with our Lazor opinion, was not necessary to effectuate the modification since that modification was already accomplished by our appellate opinion. (See Lazor, supra, 172 Cal.App.4th at p. 1204.) Our opinion merely directed the superior court to forward a copy of the modified order to the Board. (Ibid.) The Board was not required to await a superior court order modifying the March 25, 2008 order or a superior court order compelling it to comply with the modified March 25, 2008 order before it complied with the March 25, 2008 order as modified on appeal.
Lazor asserts that a notice of hearing, dated March 11, 2009, indicating that Lazor's "Life Prisoner Subsequent Parole Consideration Hearing" would be held on June 18, 2009 constitutes "irrefutable proof" that the June 9, 2009 hearing was only a regularly scheduled parole suitability hearing. The actual transcript of the hearing, attached as an exhibit to the return, affirmatively showed that the hearing was intended to be both the regularly scheduled parole hearing and the hearing in compliance with the March 25, 2008 order as modified by this court's appellate decision. In any case, the claim that Lazor was not notified that the June 9, 2009 hearing would also serve as the court-ordered hearing was outside the scope of these habeas proceedings as delineated in the order to show cause. (See In re Clark, supra, 5 Cal.4th at p. 781, fn. 16 [scope of habeas proceeding is limited to the claims that the court initially determined stated the prima facie case for relief]; Board of Prison Terms v. Superior Court, supra, 130 Cal.App.4th at p. 1239 [in crafting the order to show cause, the superior court has the power to limit the issues to be addressed in the return]; cf. In re Lawley (2008) 42 Cal.4th 1231, 1248 [petitioner "cannot through argument in a postreference brief expand his claims beyond those alleged in the petition and made the basis of this court's order to show cause"].) D. Consolidation
We are aware of no law preventing the Board from consolidating the regularly scheduled parole consideration hearing and the court-ordered hearing in the circumstances of this case since the appeal delayed enforcement of the March 25, 2008 order and the issue in both hearings was Lazor's present suitability for parole. (Cf. Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1175 [courts have inherent power to consolidate successive recommitment petitions under the SVP Act in the proper case].) The Board's implicit consolidation of the two hearings avoided needless duplication and was an efficient use of resources. The superior court did not issue the January 14, 2010 OSC on the ground that consolidation was improper or that the June 9, 2009 hearing failed to satisfy legal requirements applicable to parole consideration hearings. E. Delay of Hearing Beyond 35 Days of Lazor's Demand
Lazor now complains that the June 9, 2009 hearing does not satisfy the March 25, 2008 order because the Board did not comply with his April 14, 2008 demand for the court-ordered hearing within 35 days of that request. This argument is unsound. The March 25, 2008 order did not bar appellant's pursuit of an appeal and the record before us does not reflect any unjustifiable delay in holding the court-ordered hearing on June 9, 2009. In any event, the underlying OSC was not issued on the ground that the Board had improperly "delayed" the parole suitability hearing mandated by the March 25, 2008 order. It issued upon the mistaken notion that the March 25, 2008 order empowered Lazor to call for the hearing in the future whenever he wanted it. We have rejected that construction of the order. Lazor is not entitled to another parole suitability hearing to satisfy the March 25, 2008 order as modified on appeal F. Lack of Verification
Appellant disputes that the superior court could properly consider "one or more miscellaneous, unverified documents as a proper petition for writ of habeas corpus." Appellant asserts that the only filing that the court could have fairly deemed to be a habeas petition challenging the June 9, 2009 parole hearing was Lazor's motion to compel compliance, filed August 7, 2009, and that motion was defective as a habeas petition because it was unverified.
Penal Code section 1474 requires petitions for writ of habeas corpus to "be verified by the oath or affirmation of the party making the application." A court can reject a habeas petition solely on the ground it lacks a verification. (See People v. Manson (1976) 61 Cal.App.3d 102, 169.) Lazor's assertion in his traverse that the petition was actually verified is not well taken since he merely pointed to the declaration accompanying the proof of service for that motion. But, since we have concluded that the October 21, 2010 order was erroneous for other reasons, we need not decide the legal effect of the lack of compliance with the statutory verification requirement.
DISPOSITION
The superior court's October 21, 2010 order is reversed.
ELIA, J. WE CONCUR: RUSHING, P. J. PREMO, J.