Opinion
2d Crim. No. B297835
02-26-2020
In re BRUCE ALLEN SWENSON, on Habeas Corpus.
Xavier Becerra, Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General, Sara J. Romano, Supervising Deputy Attorney General, Kathleen R. Walton and Charles Chung, Deputy Attorneys General, for Appellant. Michael Satris, under appointment by the Court of Appeal, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CR08686)
(Santa Barbara County)
In 1996, Bruce Allen Swenson pled guilty in Case No. SB213386 to inflicting corporal injury upon his spouse (Pen. Code, § 273.5, subd. (a); count 1), false imprisonment by force or violence (§ 236; count 2), terrorist threats (former § 422; count 3) and assault with a deadly weapon (§ 245, subd. (a)(1); count 4). He admitted using a deadly weapon (§ 12022, subd. (b)) and inflicting great bodily injury (former § 12022.7, subd. (d)). He was sentenced to eight years, eight months in prison.
All further statutory references are to the Penal Code.
A year later, Swenson pled no contest in Case No. SB217904 to two counts of soliciting murder (§ 653f, subd. (b)), which is not listed as a violent felony in section 667.5, subdivision (c). He admitted two prior strike convictions (§§ 667, 1170.12) and was sentenced to an indeterminate prison term of 27 years to life, to run concurrently with the determinate sentence in Case No. SB213386. Swenson has served his determinate sentence on the violent felonies.
In 2018, Swenson, who was self-represented, filed a petition for writ of habeas corpus. He claimed he had been improperly denied early parole consideration pursuant to article I, section 32(a)(1) of the California Constitution (Proposition 57). He challenged a regulation adopted by the California Department of Corrections and Rehabilitation (CDCR) that excluded him from early parole consideration because he is serving a term of life with the possibility of parole for nonviolent felonies. (Cal. Code Regs., tit. 15 (hereafter "15 CCR"), § 3491, subd. (b)(1).) The trial court issued an order to show cause based on In re Edwards (2018) 26 Cal.App.5th 1181 (Edwards), which held that 15 CCR section 3491, subdivision (b)(1) "impermissibly circumscribe[s] eligibility for Proposition 57 parole" and directed CDCR to treat that regulation as void "and to make any further conforming changes thereafter necessary" to satisfy Proposition 57. (Edwards, at pp. 1192-1193.)
Josie Gastelo, the Warden of the California Men's Colony, is the nominal respondent to Swenson's petition. CDCR is the real party in interest.
This regulation has since been repealed, but to avoid confusion, we do not refer to it as a 'former" regulation. It was not repealed until after Swenson filed his petition.
Shortly before the trial court granted Swenson's habeas petition, CDCR issued amended regulations in response to Edwards. CDCR repealed the challenged regulation, 15 CCR section 3491, subdivision (b)(1), and added 15 CCR section 3496, subdivision (a), which states: "An 'indeterminately-sentenced nonviolent offender,' as defined in subsection 3495(a), shall be eligible for a parole consideration hearing . . . ." Although this regulation affords Swenson his requested relief, he now is ineligible under 15 CCR section 3495, subdivision (a)(5) (hereafter "the new regulation"), which excludes an inmate from the nonviolent parole process if he or she "is currently serving a term of incarceration for a nonviolent felony offense after completing a concurrent determinate term for a violent felony."
CDCR moved for reconsideration of the order granting Swenson's habeas petition, arguing the issue he raised is moot and that another petition is necessary if he wishes to challenge the new regulation. The trial court granted the motion for reconsideration but decided, without seeking briefing from CDCR, that the new regulation also runs afoul of Proposition 57. Citing In re Gadlin (2019) 31 Cal.App.5th 784, review granted May 15, 2019, S254599, the court again granted habeas relief and ordered CDCR to evaluate Swenson for early parole consideration.
CDCR filed a second motion for reconsideration, asserting the trial court improperly granted Swenson's habeas petition on an issue that was not raised in the petition and order to show cause. While that motion was pending, CDCR appealed the order granting Swenson's petition upon reconsideration. We stayed enforcement of the order pending appeal. The trial court denied CDCR's second motion for reconsideration.
We agree the trial court erred by deciding an issue that was not raised in the pleadings. (See In re Arroyo (2019) 37 Cal.App.5th 727, 732 (Arroyo).) Swenson's petition became moot when the challenged regulation was repealed. We reverse the order granting habeas relief and remand the matter to the trial court with directions to appoint counsel for Swenson and to allow him to file a supplemental habeas petition challenging the new regulation. (See Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1235.)
At oral argument, Swenson's appellate counsel, Michael Satris, said he would represent Swenson on remand if he is so appointed.
DISCUSSION
"The disposition of a petition for a writ of habeas corpus is limited to the issues actually raised by the petitioner." (In re Schuster (2019) 42 Cal.App.5th 943, 953 (Schuster); Arroyo, supra, 37 Cal.App.5th at p. 732 ["A habeas corpus proceeding is 'limited to the claims which the court initially determined stated a prima facie case for relief'"].) "'This process of defining the issues is important because issues not raised in the pleadings need not be addressed. [Citation.]' [Citation.]" (Board of Prison Terms v. Superior Court, supra, 130 Cal.App.4th at p. 1235.)
In Arroyo, the Court of Appeal determined the petitioner was eligible for early parole consideration based, in part, on Edwards and the new CDCR regulations. (Arroyo, supra, 37 Cal.App.5th at p. 730.) The petitioner argued his habeas petition was not moot because he will not actually be considered for parole until 2021. The court noted that nothing in Proposition 57 "dictates the timing of an inmate's actual parole suitability hearing." (Arroyo, at p. 731.) Edwards and the CDCR regulations "involve parole eligibility dates, not 'parole hearing' dates, suitability determinations, or release dates." (Arroyo, at p. 731.)
The petition and order to show cause were "predicated on whether [the petitioner] was eligible for early parole consideration under Proposition 57, not when his actual parole hearing would occur." (Arroyo, supra, 37 Cal.App.5th at p. 731.) The latter issue was raised in supplemental briefing. (Id. at p. 732.) The court explained that a petitioner "'cannot through [an] argument in a [post-OSC] brief expand his [or her] claims beyond those alleged in the petition and made the basis of this court's order to show cause.' [Citation.]" (Ibid.)
The Arroyo court also determined the petition was moot. (Arroyo, supra, 37 Cal.App.5th at p. 732-733.) Noting the petitioner had "received everything he requested in his petition," the court concluded "[t]here are no justiciable issues left for us to decide." (Ibid.)
In Shuster, the trial court invalidated a CDCR regulation (15 CCR § 2449.1, subd. (a)(3)) that was not before it. (Shuster, supra, 42 Cal.App.5th at p. 954.) The regulation excluded from early parole consideration an inmate incarcerated for a term of life with the possibility of parole for a violent offense. (Ibid.) The petitioner, who was not serving a life term, did not challenge the regulation. The Court of Appeal concluded "[t]he trial court's ruling invalidating sua sponte the unchallenged regulation was an abuse of discretion." (Ibid.)
Arroyo and Shuster compel a reversal here. Edwards struck down the specific regulation challenged in Swenson's habeas petition (15 CCR § 3491, subd. (b)(1)). (Edwards, supra, 26 Cal.App.5th at pp. 1192-1193.) The trial court's order to show cause stated that "[u]nder the authority of In re Edwards, Swenson is eligible for early parole consideration" and ordered CDCR "to show cause why the court should not order CDCR to evaluate Swenson for early parole consideration." The court denied CDCR's subsequent motion to stay the proceedings pending CDCR's adoption of new regulations in compliance with Edwards.
In its return, CDCR acknowledged the holding in Edwards and conceded the decision "is binding on the [trial] [c]ourt." To preserve certain arguments, however, CDCR asserted that Proposition 57's text supports its position that an indeterminately-sentenced inmate cannot meet the prerequisites for early parole consideration. CDCR also argued that the exclusion of third-strike offenders from Proposition 57 parole review is consistent with the goal of enhancing public safety. It did not discuss any other exclusions in the regulations.
The first order granting Swenson's petition confirmed the limited nature of the petition. The trial court summarized his argument as follows: "Swenson contends he was improperly denied early parole consideration pursuant to Proposition 57 under a regulation adopted by CDCR. The regulation excludes from early parole consideration inmates who are incarcerated for a term of life with the possibility of parole for an offense that is not a violent felony. Swenson contends that the regulation is inconsistent with Cal. Const. art. I, § 32, and, therefore, void." (Italics added.)
Swenson claims an earlier amended regulation mirrors the new regulation. That regulation, which went into effect on May 1, 2018, excludes from early nonviolent parole consideration an inmate who "is currently serving a term of incarceration for a nonviolent felony offense after completing a concurrent determinate term for a 'violent felony.'" (15 CCR § 2449.1, subd. (a)(6).)
Swenson contends CDCR should have alleged in its return that, under 15 CCR section 2449.1, subdivision (a)(6), he was ineligible for nonviolent parole consideration because he had completed a concurrent determinate term for a violent felony. CDCR maintains this regulation refers only to inmates with determinate sentences. We agree. That regulation defines "'determinately-sentenced nonviolent offender[s],'" while the new regulation defines "'indeterminately-sentenced nonviolent offender[s].'" (Compare 15 CCR § 2449.1 with 15 CCR § 3495.) Swenson falls into the latter category. Thus, at the time the petition, order to show cause and return were filed, Swenson was only ineligible for early parole consideration under 15 CCR section 3491, subdivision (b)(1). (See Shuster, supra, 42 Cal.App.5th at p. 951, fn. 3.) Until that regulation was repealed and the new regulation added, there was no other regulation excluding Swenson from such consideration.
We conclude the trial court improperly decided an issue raised for the first time in a "post-OSC" motion. (Arroyo, supra, 37 Cal.App.5th at p. 732.) Instead of granting the habeas petition on reconsideration, the court should have dismissed it as moot. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134-135; City of Los Angeles v. County of Los Angeles (1983) 147 Cal.App.3d 952, 959-960.) "'A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief.' [Citation.]" (In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231.) Swenson obtained the relief he requested, i.e., the elimination of the CDCR regulation categorically barring him from early parole consideration as a third-strike offender. (Arroyo, at pp. 732-733.) At that point, there were no remaining justiciable issues. (Id. at p. 733.) The court had no authority to "invalidat[e] sua sponte [an] unchallenged regulation." (Shuster, supra, 42 Cal.App.5th at p. 954.) We reverse the order granting such relief.
At oral argument, CDCR's counsel conceded that Swenson may challenge the new regulation either by initiating another habeas proceeding or by filing a supplemental petition on remand. We believe the latter option is the most efficient and equitable.
DISPOSITION
The order granting, on reconsideration, Swenson's petition for writ of habeas corpus is reversed. The matter is remanded to the trial court with directions to appoint counsel for Swenson and to allow him to file a supplemental petition for writ of habeas corpus challenging the new regulation. The stay previously issued by this court shall be dissolved on the date this opinion is final.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
YEGAN, J.
James E. Herman, Judge
Superior Court County of Santa Barbara
Xavier Becerra, Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General, Sara J. Romano, Supervising Deputy Attorney General, Kathleen R. Walton and Charles Chung, Deputy Attorneys General, for Appellant.
Michael Satris, under appointment by the Court of Appeal, for Respondent.