Opinion
No. 1: 05-cv-00963 ALA HC.
October 24, 2007
ORDER
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has previously been granted permission to proceed in forma pauperis.
Since Petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, Respondent will be directed to file a response to Petitioner's habeas petition.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Respondent is directed to file a response to Petitioner's habeas petition within thirty-five (35) days from the date of this order. See Rule 4, Fed.R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed.R. Governing § 2254 Cases;
3. If the response to the habeas petition is an answer, Petitioner's reply, if any, shall be filed and served within thirty-five (35) days after service of the answer;
4. If the response to the habeas petition is a motion, Petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty-five (35) days after service of the motion, and respondents' reply, if any, shall be filed and served within fourteen (14) days thereafter; and
5. The Clerk of the Court shall serve a copy of this order together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General.
Exhibit
Wayne Anthony Parks F51244 North Kern State Prison Po Box 5000 Delaware Calif 93216 PETITIONER IN PRO SE NO.: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TO: THE ABOVE-ENTITLED Petitioner, in Pro Se, containing points and authorities based upon the June 24, 2004 filing by the United States Supreme Court in Blakely v. Washington (2004) ___ U.S. ___ [No. 02-1632; 2004 Daily Journal D.A.R. 7581, June 25, 2004 Daily Journal Reports] ("Blakely"). This recent decision of the United States Supreme Court is relevantSTATEMENT OF FACTS
IN 1979, DEFENDANT COMMITTED AN ASSUALT (DOCKET NUMBER 49425-126 34) ON AUGUST 29 1979, DEFENDANT WAS COMMITTED TO THE DEPARTMENT OF YOUTH AUTHORITY UNDER WELFARE INSTITUTION CODE, SECTION 1731 1731.5 1738. ON JUNE 5 1981 DEFEDANT WAS RELEASED FROM THE YOUTH AUTHORITY (CYA) AND PLACE ON (CYA) PAROLE, AN ORDER OF DISCHARGE WAS GRANTED UNDER SECTION 1179 AND SECTION 1772 OF THE WELFARE AND INSTITUTION CODE.DOCUMENTARY EVIDENCE PRESENTED TO THE TRIAL COURT INDICATED THAT THE PETTITIONER WAS IN FACT COMMITTED TO THE CALIFORNIA YOUTH ATHORITY, FOR THE OFFENSE THAT GAVE RISE TO THE ALLEGATION AND FINDING OF A PRIOR SERIOUS FELONY CONVICTION, THAT OFFENSE OF ASSAULT WHICH OCCURRED ON AUGUST 5, 1979. THE EVIDENCE FURTHER INDICATED THAT THAT THEREAFTER THE PETTITIONER WAS GENERALLY DISCHARGED FROM THE YOUTH AUTHORITY. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE COURTS finding that the 1979 PRIOR ALLEGED STRIKE CONVICTION, CONSTITUTES A SERIOUS FELONY FOR THE THREE STRIKE LAW. PETTITIONER WOULD LIKE TO EXPLAIN AT THE TIME THIS OFFENSE OCCURRED OF ASSAULT WAS PUNSHISHABLE IN THE ALTERNATIVE BY A STATE PRISON COMMITMENT, OR A COUNTY, JAIL SENTENCE PENAL CODE SECTION 17, SUBDIVISION(c) AS IT THEN READ PROVIDED THAT IN THE CASE OF AN ANTERNATIVELY. PUNISHMENT FELONY, IF THE COURT COMMITTED A DEFENDANT TO THE YOUTH AUTHORTY UPON THE DEFENDANTS DISCHARGE FROM THAT AGENCY THE OFFENSE IS DEEMED, A MISDEMEANOR THEREAFTER FOR ALL FUTURE PURPOSES BOTH THE LITERAL LANGUAGE OF THE SECTION AND ITS HISTORY SHOULD COMPEL THIS COURT TO CONCLUDE THAT THE DEFENDANT DOES NOT HAVE A PRIOR, FELONY CONVICTION, SERIOUS OR OTHERWISE, AS A RESULT OF THE ROBBERY OFFENSE.
THE LITERAL LANGUAGE OF PENAL CODE SECTION 17, SUBDIVISION (c) ADMITS OF NO EXCEPTIONS. IT IS CLEAR THE LEGISLTURE WAS AWARE OF THE DISTINCTION BETWEEN AN HONORABLE, GENERAL, AND A DISHONORABLE DISCHARGE FROM THE YOUTH AUTHORITY FOR THE STATUTE WHICH AUTHORIZES THE GRANT OF AN HONORABLE DISCHARGE AND THE RESULTING RECORD CLEARANCE HAS EXISTED IN VARIOUS FORMS SINCE 1949. MOREOVER THIS SAME STATUTE SPECIFICALLY PROVIDES THAT A COURT UPON APPLICATION MAY GRANT A SIMILAR RECORD CLEARANCE TO ONE WHO IS DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS. IF, IN FACT, THE LEGISLATURE HAD WISHED TO LIMIT THE RELIEF PROVIDED IN SECTION 17, SUBDIVISION (c) TO ONLY THOSE INDIVIDUALS HONORABLY DISCHARGED FROM THE YOUTH AUTHORITY IT COULD QUITE EASILY HAVE SAID SO. IN THE IN THE ADSENCE OF EXPRESS LANGUAGE TO THAT EFFECT, IT WOULD BE AN ACT OF BLATANT JUDICIAL MISCHIEF FOR THIS COURT TO DECLARE SUCH A LIMITATION. THE HISTORY OF PENAL CODE SECTION 17, AS IT APPLIES TO YOUTH AUTHORITY COMMITMENTS, DITATES A LIKE RESULT. THAT SECTION HAS UNDER-GONE NUMEROUS REVISIONS OVER THE YEARS. A BRIEF REVIEW OF THE RELAVANT CHANGES WILL DEMONSTRATE THE CORRECTNESS OF PETITIONER'S CONCLUSION.
BETWEEN 1874 AND 1947 SECTION 17 MADE NO SPECIFIC REFENCE TO YOUTH AUTHORITY COMMITMENTS. IT SIMPLY PROVIDED THAT IN THE CASE OF ALTERNATIVE FELONY, THE OFFENSE WOULD BE DEEMED A MISDEMEANOR FOLLOWING A JUDGMENT IMP¼OSING A PUNISHMENT OTHER THAN IMPRISONMENT IN THE STATE PRISON. THE YOUTH AUTHORITY WAS LEGISLATIVELY CREATED IN 1941. IT REMAINED FOR THE COURTS THROUGH JUDICIAL INTERPRETATION, TO SPELL OUT THE RELATIONSHIP BETWEEN SECTION 17 AND A COMMITMENT TO THE YOUTH AUTHORITY. THIS OCCURRED IN THE CASE OF PEOPLE VS. WILLIAMS (1945) 27 Cal. 2d 220 WHERE IT WAS HELD THAT A COMMITMENT TO A YOUTH AUTHORITY FACILITY WAS NOT PENAL PUNISHMENT AND THEREFORE NOT A JUDGMENT IMPOSING A PUNISHMENT OTHER THAN IMPRISONMENT IN THE STAT PRISON. A FELONY, UNDER THIS RATIONAL, REMAINED A FELONY.
IN 1947, SECTION 17 WAS AMENDED BY THE LEGISLATURE TO SPECIFICALLY ADDRESS THE YOUTH AUTHORITY COMMITMENT PROBLEM. THE AMENDMENT PROVIDE THAT IN THE CASE OF AN ALTERNATIVE FELONY THAT RESULT IN A COMMITMENT TO THE YOUTH AUTHORITY, THE OFFENSE REMAINED A FELONY UNLESS AND UNTIL THE INDIVIDUAL CONCERNED WAS DISCHARGE FROM THE YOUTH AUTHORITY AND THEREAFTER MADE APPLICATION TO A COURT OF COMPETENT JURISDICTION TO HAVE THE OFFENSE DECLARED A MISDEMEANOR RELIEF WAS IN LARGE PART COMMITED TO THE DISCRETION OF THE COURT. UNDER THIS STATUTORY SCHEME, DEFENDANTS COMMITED TO THE YOUTH AUTHORITY FOR ALTERNATIVE FELONY OFFENSES WERE ENCOURAGED TO TAKE ADVANTAGE OF THE REHABILITATIVE OPPURTUNITIES OFFERED THEM BY PENALIZING THOSE WHO CREATED DISCIPLINARY PROBLEMS.
IN 1957, THE PROVISIONS ADDED IN 1947 WERE DELETED AND NO NEW LANGUAGE WAS ADDED. THIS WAS JUDICIALLY INTERPRETED TO MEAN THE LEGISLATURE WISHED TO RETURN TO THE WILLIAMS CONSTRUCTION OF SECTION 17. (PEOPLE V ZACCARIA (1963) 216 Cal.App. 2d 787, OVERRULED ON OTHER GROUNDS IN PEOPLE V NAVARRO (1972) 7 Cal. 3d 248, 271, fn. 10.)
TWO YEARS LATER, SECTION 17 WAS AGAIN AMENDED AND THE ISSUE OF THE YOUTH AUTHORITY COMMITMENTS FOR ALTERNATIVE FELONIES WAS ONCE MORE SPECIFICALLY PROVIDED FOR. THIS AMENDMENT STATED THAT THE OFFENSE WAS DEEMED A MISDEMEANOR UPON A COURT'S COMMITMENT OF A DEFENDANT TO THE YOUTH AUTHORITY. THIS LANGUAGE DID NOT RECEIVE DEFINITIVE INTERPRETATION UNTIL 1971 IN THE CASE OF PEOPLE V. HANNON (1971) 5 Cal. 3d 330. IN HANNON THE DEFENDANT HAD BEEN CONVICTED OF TWO COUNTS OF STATITORY RAPE, ALTERNATIVE FELONIES AND COMMITTED BY TRIAL COURT TO THE YOUTH AUTHORITY. HE WAS REJECTED BY THAT AGENCY AND WAS RETURNED TO THE TRIAL COURT, WHICH THEN COMMITTED HIM TO PRISON. THE CALIFORNIA SUPREME COURT CONSTRUED THE APPLICABLE LANGUAGE OF SECTION 17 TO MEAN THAT UPON COMMITMENT TO THE YOUTH AUTHORITY BY THE TRIAL COURT, THE OFFENSE WERE REDUCED TO MISDEMEANORS BY OPERATION OF LAW AND THE DEFENDANT THEREAFTER WAS SUJECT ONLY TO MISDEMEANOR PUNISHMENT. (Id., at p. 340)
SECTION 17 WAS THEREAFTER REVISED, PROVISIONS WERE ADDED AND SECTIONS WERE RENUMBERED. FOR THESE PURPOSES, THE ONLY AMENDMENT OF IMPORTANCE FOLLOWING THE HANNON DECISION (AND MOST PROBABLY IN RESPONSE TO IT) OCCURRED IN 1976. THE AMENDED SECTION 17 PROVIDED IN PERTINET PART: "(b) WHEN A CRIME IS PUNISHABLE, IN THE DECRETION OF THE COURT, BY IMPRISONMENT IN THE STATE PRISON OR BY FINE OR IMPRISONMENT IN THE COUNTY JAIL, IT IS A MISDEMEANOR FOR ALL PURPOSES UNDER THE FOLLOWING CIRCUMSTANCES: . . . [¶] (2) WHEN THE COURT, UPON COMMITTING THE DEFENDANT TO THE YOUTH AUTHORITY, DESIGNATES THE OFFENSE TO BE A MISDEMEANOR . . . [¶] (c) WHEN A DEFENDANT IS COMMITTED TO THE YOUTH AUTHORITY FOR A CRIME PUNISHABLE, IN THE DECRETION OF THE COURT BY IMPRISONMENT IN THE STATE PRISON OR BY FINE OR IMPRISONMENT IN THE COUNTY JAIL, THE OFFENSE SHALL, UPON THE DISCHARGE OF THE DEFENDANT FROM THE YOUTH AUTHORITY, THEREAFTER BE DEEMED A MISDEMEANOR FOR ALL PURPOSES."
PETITIONER NOTE THAT THIS WAS THE CONTROLLING STATUTORY LANGUAGE IN EFFECT AT THE TIME OF DEFENDANT'S ROBBERY OFFENSE THAT GIVES RISE TO THE SERIOUS FELONY PRIOR ALLEGATION.
THE HISTORY OF SECTION 17 AS IT RELATES TO YOUTH AUTHORITY COMMITTMENTS EVIDENCES A LEGISLATIVE INTENT TO RELEASE, WHERE POSSIBLE, YOUTHFUL OFFENDERS FROM THE STIGMA THAT ATTACHES UPON CONVICTION OF A FELONY. VARIOUS STATUTORY PLANS, AS RECOUNTED ABOVE, HAVE BEEN IMPLEMENTED. THE LEGISLATURE HAS SOUGHT TO BALANCE THE NEEDS OF SOCIETY WITH THE REHABILITATION OF DELINQUENT YOUTHS. IT HAS ALSO SOUGHT TO GIVE THE YOUTH AUTHORITY SUFFICIENT FLEXIBILITY IN FULFILLING ITS STATUTORY MISSION. THE 1976 AMENDMENT POSTPONED REDUCTION OF A FELONY UNTIL DISCHARGE FROM THE YOUTH AUTHORITY. THIS GAVE THE AUTHORITY AMPLE TIME AND OPPORTUNITY TO EVALUATE THE INDIVIDUAL DEFENDANT AND HIS POTENTIAL FOR REHABILITATION. THE COURT IS NOT PRIVY TO THE CIR-CUMSTANCES THAT GAVE RISE TO DEFENDANT'S DISCHARGE. THIS COURT SHOULD RECONIZE THE YOUTH AUTHORITY DID NOT HAVE TO DISCHARGE THE DEFENDANT AT ALL. PETITIONER HOPE THIS COURT IS SATISFIED THE DISCHARGE REDUCED DEFENDANT'S OFFENSE TO A MISDEMEANOR. ACCORDINGLY PETITIONER ASK THAT THIS COURT REVERSE AND SET ASIDE AND RETURN TO TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE VIEWS EXPRESSED HEREIN.
PETITIONER ARGUES THAT HIS SENTENCE MAY NOT BE ENHANCED FOR THE PURPOSE OF THE THREE STRIKE LAW BY REASON OF HIS (CYA) COMMITMENT SINCE SUCH A COMMITMENT SHALL NOT BE CONSTRUED AS A "PRISON TERM" WITHIN THE MEANING OF PENAL CODE § 667.5. THIS COURT SHOULD AGREE.
SUBDIVISION (e) OF SECTION 667.5 PROVIDES: "THE ADDITIONAL PENALTIES PROVIDED FOR PRISON TERMS SHALL NOT BE IMPOSED FOR ANY FELONY FOR WHICH THE DEFENDANT DID. NOT SERVE A PRIOR SEPARATE TERM IN STATE PRISON".
IN SUBDIVISION (h) OF SECTION 667.5, THE LEGISLATURE DEFINED "SERVING A PRISON TERM," FOR PURPOSES OF THAT SECTION, TO INCLUDE "ANY CONFINEMENT TIME IN ANY STATE PRISON OR FEDERAL PENAL INSTITUTION AS PUNISMENT FOR COMMISSION OF AN OFFENSE, . . . . TWO CASES IN HAVE INTERPRETED SUBDIVISION (h) ARE PEOPLE VS. LARA (1979) Cal App. 3d 247 [ 158 Cal Rptr. 847] AND PEOPLE VS. MARTINEZ (1980) 106 Cal. App. 3d 524 [ 165 Cal Rptr. 160]. THESE CASES HELD, inter alia, THAT A COMMITMENT TO THE CALIFORNIA RE-HABILITATION CENTER (CRC) COULD NOT BE DEEMED A "PRISON TERM" FOR PURPOSES OF PENAL CODE SECTION 667.5.
THE SECOND DISTRICT COURT OF APPEAL, MODIFIED THE SENTENCE TO ELIMINATE A ONE YEAR PRIOR ENHANCEMENT OF A DEFENDANT'S SENTENCE PURSUANT TO PEN. CODE. § 667.5, subd. (b); as so modified. PEOPLE V. REDMAN 125 Cal App. 3d 317, 178 Cal Rptr. 49. THE COURT HELD THAT A COMMITMENT TO THE (CYA) AND THE COMPLETION OF A PERIOD OF COMMITMENT IN A (CYA) FACILITY DO NOT CONSTITUTE THE SERVING OF A PRISON TERM WITHIN THE MEANING OF § 667.5, AND THUS DEFENDANT'S SENTENCE COULD NOT BE ENHANCED BY REASON OF HIS PRIOR (CYA) COMMITMENT. (Id p. 317)
THE THIRD COURT OF APPEAL MODIFIED A JUDGMENT IN (PEOPLE V. WEST) 154 Cal. App. 3d 100; 201 Cal. Rptr. 63 [APRIL] ON PAGE 109 quoted from THREE JUSTICES: WE THEREFORE ASSUMETHE ANALYSIS (CORRECTLY) STATES THE THEN EXISTING LAW THAT ADULT CONVICTIONS, WHICH RESULT IN COMMITMENT TO THE YOUTH AUTHORITY UNDER WELFARE INSTITUTION CODE SECTION 1731.5, WHICH GRANTS THE TRIAL COURT DISCRETION TO COMMIT CERTAIN DEFENDANTS BETWEEN THE AGES OF 18 and 21 TO THE YOUTH AUTHORITY, MAY NOT BE USED TO ENHANCE A SENTENCE UNDER PENAL CODE SECTION 667.5. (PEOPLE V. REDMAN (1981) 125 Cal. App. 3d 317, 323 [ 178 Cal. Rptr. 49], disapproved ON ANOTHER POINT IN PEOLE V. SUPERIOR COURT (MENDELLA) (1983) 33 Cal. 3d 754, 760 fn 5[ 191 Cal Rptr. 1, 661 P.2d 1081].)
IN THE CASE OF (IN RE ALINE D. 1975 14 Cal 3d 557 [ 121 Cal Rptr. 816, 536 P.2d 65], the CALIFORNIA SUPREME COURT ARTICULATED THE BROAD PRINCIPLE THAT ALL JUVENILE COMMITMENT PROCEDDING, [I]NCLUDING THOSE RELATING TO THE CYA, ARE DESIGNED FOR PURPOSES OF REHABILITATION AND TREATMENT, NOT PUNISHMENT. (Id., at p. 567.) AS SUPPORT FOR THIS CONCLUSION, THE COURT CITED WELFARE AND INSTITUTION CODE 734, WHICH REQUIRES THAT A COMMITMENT TO THE CYA BE SUPPORTED BY A DETERMINATION OF PROBALE BENEFIT TO THE MINOR. (Id., at pp. 562, 567.)
IT IS ALSO RELEVANT THAT A STATUTE CONTAINING LANGUAGE SIMILAR TO THAT FOUND IN SECTION 667.5, FORMER PENAL CODE SECTION 644, WAS REPEATEDLY. HELD INAPPLICABLE TO CYA COMMITMENTS. (PEOPLE V. LOCKWOOD 1956) 146 Cal. App. 2d 189, 192 [ 303 P.2d 621]; IN RE KELLER (1965) 232 Cal. App. 2d 520, 526 [ 42 Cal. Rptr. 921]; PEOPLE V. WILKINS (1967) 251 Cal. App. 2d 823, 829 [ 60 Cal. Rptr. 49]; 17 Ops. Cal. Atty. Gen. 34
IT IS REASONABLE TO ASSUME THE LEGISLATURE KWEN, WHEN IT SIMULTANEOUSLY ENACTED SECTION 667.5 AND REPEALED SECTION 644, THAT A CYA COMMITMENT HAD BEEN HELD NOT TO CONSTITUTE A PRISON TERM FOR PURPOSES OF THE LATTER STATUTE. THE REHABILITATION, AND REFORMATORY EDUCATIONAL DISCIPLINE OR OTHER TREATMENT, AS APPEARS FROM THE LEGISLATIVE DECLARATION OF POLICY, IS TO BE CARRIED OUT FOR NONPUNISHMENT AND NONPUNITIVE PURPOSES. IT IS THE POLICY OF THIS STATE TO CONSTRUE A WELFARE INSTITUTION CODE AS FAVORABLY TO THE DEFENDANT AS ITS LANGUAGE AND THE CIRCUMSTANCES OF ITS APPLICATION MAY REASONABLY PERMIT; JUST AS IN THIS CASE OF A QUESTION OF FACT, THE DEFENDANT IS ENTITLE TO THE BENEFITS OF EVERY REASONABLE DOUBT AS TO THE TRUE INTERRETATION OF WORDS OR THE CONSTRUTION OF LANGUAGE USED IN A STATUTE.
PETITIONER CONCLUSION IN THIS RESPECT IS STRENGTHENED BY THE FACT THAT WHEN THE LEGISLATURE WISHED TO INCLUDE A SPECIFIC FORM OF NONPUNITIVE CONFINEMENT WITHIN THE SCOPE OF SECTION 667.5 it KNEW HOW TO DO SO, AND DID SO EXPRESSLY. WITH THE RESPECT FOR THIS COURT PETITIONER IS ASKING THIS COURT TO REVIEW THIS PETITION IN THE FAVOR OF THE LAW AND FOR THE PETITIONER. FOR THE REASON IN THE ABOVE STRIKE THE PRIOR AND REMAND FOR RESENTENCING.
CONCLUSION
FOR THE AFOREMENTIONED REASON, PETITIONER WAYNE PARKS, ASERTS THE STATE HAS VIOLATED PETITIONER'S DUE PROCESS PROTECTIONS BY IMPOSING AN INCREASED TERM, FOR A PREVIOUS CONVICTION AFTER IT HAD ALREADY SPECIFIED IN A LESSER TERM AT THE TIME OF THE PRIOR. THIS COURT SHOULD ACCORDINGLY ISSUE AN ORDER TO SHOW CAUSE, GRANT THIS PETITION FOR WRIT OF HABEAS CORPUS AND REVERSE THE 1979 PRIOR AND REMAND FOR A NEW TRIAL.
PRAYER FOR RELIEF
A WRIT OF HABEAS CORPUS BE ISSUED BY THIS SUPERIOR COURT OF COUNTY TO VACATE ITS ORDER OF A JUVENILE STRIKE, ASK THAT THIS COURT GRANT PETITIONER SUCH RELIEF THAT IS VESTED IN THE CONSTITUTIN OF THE UNITED STATES OF AMERICA.