Opinion
No. H028837.
August 2, 2006. DEPUBLISHED: November 15, 2006.
Appeal from the Superior Court of Santa Clara County, No. CC462952, Griffin M. Bonini, Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Christopher W. Grove, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
At issue in this case is defendant's entitlement to credit against his prison sentence for time he spent in the county jail prior to sentencing. Based on contacts with parole authorities, the trial court ruled that defendant was not entitled to credit because his confinement was partly attributable to the revocation of his parole based in part on grounds independent of the conduct underlying the present charges. Defendant contends that the court erred by refusing to conduct a hearing into the factual basis for the parole revocation and certain procedural irregularities asserted by defendant in the parole proceedings. In explaining this refusal, the court opined that defendant had an adequate administrative remedy for the claimed defects in the revocation proceedings. In this the court was mistaken, because the regulations providing for administrative review of a parole revocation order had been repealed. On this basis we conclude that the court erred, and we remand for reconsideration of defendant's challenge to the denial of custody credits.
BACKGROUND
Defendant was arrested on August 9, 2004, while on parole from state prison. On August 12, 2004, he was charged with transporting or furnishing a controlled substance in violation of Health and Safety Code section 11352, subdivision (a), with enhancements including prior convictions. On March 11, 2005, he pleaded guilty to this charge and admitted the priors with the understanding that he would receive a sentence of three years in prison. At the conclusion of this hearing the court announced that the matter was "being referred to probation department solely for the purpose of notification of victim, if any, and calculation of credits."The probation officer filed a "Waived Referral" memorandum stating that "[a]ccording to State Parole Agent Wilkins . . ., the defendant's parole was revoked for twelve months, ineligible for good time/work time relative to his parole violation, dating from the arrest date of August 9, 2004 and scheduled to complete his sentence on August 2, 2005. The revocation was based on the instant offense, as well as failure to follow reporting instructions, and frequenting areas of drug-related activity. As such, the defendant is not entitled to dual credits in this matter." In other words, defendant's incarceration for the parole violation rested in part on conduct independent of that underlying the criminal charges. As a result, he was not entitled to the sentence credits he would otherwise have received under Penal Code section 2900.5. (See People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194 [ 40 Cal.Rptr.2d 534, 892 P.2d 1277] ["where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a `but for' cause of the earlier restraint"].)
The court received the probation memorandum at a hearing on April 12, 2005. A dispute arose as to defendant's reported "failure to follow reporting instructions" and what that meant. Defendant told the court that he had complied with instructions and that a named parole officer should be able to corroborate that fact. The court said, with defense counsel's consent, that it would "contact parole to find out what it could about this particular thing."
The record does not include a transcript of the April 12 hearing, and it does not appear that a transcript was ever requested. At the hearing a week later, however, defense counsel gave a lengthy recapitulation of the April 12 proceedings, which the court pronounced "a fair summary of what occurred prior." The account given here is based upon remarks in these later proceedings.
The matter was continued to April 19, at which time defendant again stated that he had reported to parole on August 6, 2004, adding that he had signed a log so documenting, and had filled out a monthly report with the assistance of "Officer O'Lear." The court then said, "I did speak to Agent Wilkinson at the Parole Department. Mr. Wilkinson pulled Mr. Foster's file, went over the file with me on the phone. [¶] The results of Mr. Foster's case were he had a violation of parole hearing, and one of the violations that was found true at that hearing was failure to report as instructed. The dates for the failure to report as instructed predated the occurrence of the sale-of-cocaine case that Mr. Foster is pending sentencing on. Accordingly, that is a mixed-conduct parole violation, and I am not going to say on the record that I don't believe Mr. Foster or that I don't believe Mr. Wilkinson because I really don't have any basis to say that one way or the other. [¶] But what I will say is that this issue has already been decided at the parole-violation level, and they found to be a true a failure-to-report allegation. . . . And Mr. Wilkinson searched the file while I was on the phone, indicated that there was no record in the file of a monthly report or a sign-in for Mr. Foster for August 5th or 6th or 7th or any time near there. So that is the information that the court relied on. It's the information that is also listed in the . . . [¶] . . . [¶] . . . probation report, and that is the information that the court is going to use for the purposes of determining credits. . . ."
Defense counsel then requested a "formal hearing" on the question of credits "since I believe there seems to be a dispute here." He expressed interest in subpoenaing "not only Agent Wilkinson, probably Agent O'Lear, if I can find out who that is, and get the records for that date." The court, however, replied that it was not basing its ruling on "the credibility of any witness" but on, "for lack of a better term, the law of the case. There has been a finding by parole through a Morrissey hearing that he was in violation of his parole for failing to report. I really do not anticipate re-litigating that issue that was litigated at a Morrissey hearing and do not intend to relitigate that issue."
In Morrissey v. Brewer (1972) 408 U.S. 471, 482, 484-489 [ 33 L.Ed.2d 484, 92 S.Ct. 2593], the court held that the Fourteenth Amendment's due process guarantee requires certain minimum procedural safeguards in connection with parole revocation proceedings.
Defense counsel then stated that defendant had failed to attend the revocation hearing because he had been under the influence of medication for his back injury. Defendant explained, "I was loaded. They gave me a thousand milligrams of Vicodin, like, 20 minutes prior to the hearing. And when they came and asked me, I told them, `Hey, I'm high.' I just had a thousand milligrams back to back for the past five and a half months. I was on Vicodin almost six straight months, and I was loaded. I couldn't — I was like this (indicating) when they came. I was nodding when they knocked on the door, and I said, `Yeah, what's up?' I said `I can't face no hearing right now. I'm loaded. I can't represent myself.' The attorney there, I can't tell him how to represent me. I'm smashed up."
That defendant was generally under medication is supported by the colloquy and allocution at his change-of-plea hearing. At that time his attorney noted that defendant was "ready to enter his plea" in that he "didn't take his medication. . . . He is thinking clear, in a bit of pain, but he is ready to go. . . ." Shortly thereafter defendant answered yes to the court's question whether he was taking medication for his back pain; he said he was taking Vicodin and had last taken it "last night." The court observed that defendant was "in some discomfort this morning." Later defendant asked the court to ensure that his medical records were transported with him, because he had an inoperable herniated disk and "I need my records so I can get my pain medication."
The court replied, "I think that the resolution for that issue and the resolution of the alleged inaccuracy in their conclusion of failing to report as required is an issue that needs to be taken up at the parole level and at the level of C.D.C. I'm not going to relitigate that issue here. There is an appeal process for when defendants believe their Morrissey conclusion is inaccurate, and I'm going to let Mr. Foster pursue it there. I'm not going to grant a hearing as to credits. I intend to impose sentence today and give the credits that have been given by Miss Rae from the date of his entry of plea, and Mr. Foster can address those issues. My understanding is that C.D.C. can and has in the past corrected, when shown to be wrong, an inaccurate Morrissey conclusion. [¶] . . . [¶] . . . If the failing to report conclusion is found to be faulty, I will . . . [interruption] . . . I will gladly grant Mr. Foster credits to the date of his initial incarceration in this matter. . . ."
After conferring with defendant, counsel asked "if the court would allow me to try and find Agent O'Lear who he claims is the one that was there that day and then actually signed him in so I can try and talk to that person to see if I can get confirmation of what Mr. Foster is telling me, that he did actually sign in and show up on either August 6th or 7th. . . ." Counsel said he had been trying to locate this agent but had not yet succeeded. The court stated, however, that even if counsel came forward with such evidence it would not change the court's ruling. "If that information changes the parole board's conclusion that Mr. Foster was in violation for failing to report as instructed and in fact proves that he did report as instructed, and they delete that allegation of violation of parole, then that would remove any doubt in my mind that it's mixed conduct and he would be entitled to it. But I'm not going to make a conclusion contrary to the conclusion that that body made absent them acting on additional evidence themselves." Likewise, the court observed, "I don't know what they relied on. I'm going to leave that determination to them. Again, if that determination is made, we can certainly calendar it, and the court would be more than willing to grant Mr. Foster additional credits." The court proceeded to pronounce a sentence of three years, allowing 40 days actual credit and 20 days conduct credit, for a total of 60 days' credit for presentence confinement. Defendant filed this timely appeal.
DISCUSSION
I. Introduction
The sole question on appeal is whether the trial court erred in relying on the reported findings of parole authorities to limit defendant's presentence confinement credits without considering his objections to those findings. The court ruled in effect that the administrative findings were conclusive, at least until such time as defendant had pursued an administrative appeal. This conclusion cannot be sustained.
In addition to challenging the validity of the parole revocation findings, defendant argues that the trial court should have considered whether the failure to report, standing alone, would have produced the same penalty as the failure to report combined with the misconduct underlying the charges here. Basically he suggests that even if the failure-to-report finding is sound, it might only account for part of the incarceration ordered by parole authorities, leaving the remaining portion attributable solely to the conduct for which defendant was convicted here, and thus available as a credit. We note that under regulatory guidelines, the failure to report is a Type II violation with an "assessment range" of 5 to 9 months. (Cal. Code Regs., tit. 15, § 2646.1, subd. (c)(3).) Respondent meets this issue only by noting that no such contention was offered below. Our disposition, which will set the question of credits at large, makes it unnecessary to decide whether the point is available on this appeal.
The only doctrine cited by the court was "law of the case." That doctrine concerns the binding effect of an appellate judicial decision in a subsequent retrial or appeal of the same case. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 895, p. 928.) The more germane doctrines are exhaustion of administrative remedies and collateral estoppel (issue preclusion). As will appear, neither of those doctrines can sustain the court's refusal to conduct a hearing into credits.
II. Administrative Exhaustion
Parole revocation is an administrative proceeding, and ordinarily a person aggrieved by an administrative ruling must pursue available means for administrative review before he may challenge the ruling in court. ( In re Muszalski (1975) 52 Cal.App.3d 500, 508 [ 125 Cal.Rptr. 286] [where correctional department had "provided inmates with viable, efficacious administrative remedies" to review denial of document inspection, parolee had to exhaust those remedies before seeking habeas relief].) Application of this doctrine, however, presupposes the existence of a plain and adequate administrative remedy. "[A]n opportunity for administrative review does not constitute the sort of `remedy' which a party must exhaust before invoking the assistance of the courts unless the statute or regulation under which such review is offered `establishes clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties.' [Citations.]" ( Endler v. Schutzbank (1968) 68 Cal.2d 162, 168 [ 65 Cal.Rptr. 297, 436 P.2d 297]; see In re Muszalski, supra, 52 Cal.App.3d at p. 508.)
At the time of defendant's parole revocation, there was no "clearly defined machinery," if indeed there was any machinery at all, for administrative review of parole revocation orders. Prior to 2004, governing regulations provided that, with stated exceptions not including an order revoking parole, any decision by the Board of Prison Terms — which was the agency then adjudicating such matters — could be administratively appealed. (Cal. Code Regs., tit. 15, former § 2051; see id., § 2050.) These provisions, however, were repealed effective May 1, 2004.
In fact there was a series of orders of repeal, each adopted on an emergency basis and therefore abrogated by operation of law upon the adopting agency's failure to certify, within 120 days of adoption, compliance with certain Government Code provisions. (Barclay's Official Cal. Code Regs. (2005 ed.) note foll. tit. 15, § 2051 (repealed), p. 49.) The required certificate was finally submitted on April 26, 2005, making the repeal permanent. ( Ibid.; see Gov. Code, § 11346.1, subds. (d)-(f).)
Defendant's alleged parole violation apparently occurred in early August, 2004. So far as we have been able to determine, there were at that time no prescribed procedures for appealing from a decision to revoke parole. The pertinent regulations may be fairly described as chaotic, however, and the point is not free from doubt. One rule still on the books provides for an appeal of "any departmental decision" that a parolee "can demonstrate as having an adverse effect upon their [ sic] welfare." (Cal. Code Regs., tit. 15, § 3084.1.) The "department" in question, however, is the Department of Corrections, as reflected in the titles for the headings of the relevant division (Department of Corrections) and chapter (Rules and Regulations of the Director of Corrections). Since 2005, neither the Department of Corrections nor the Director of Corrections has existed. The former has been replaced by the Department of Corrections and Rehabilitation. (See Stats. 2005, ch. 10, § 4, repealing Gov. Code, former § 12811.) Prior to reorganization, the Department of Corrections was a subdivision of the Youth and Adult Correctional Agency, and was for at least some purposes distinct from the Board of Prison Terms, which oversaw parole revocations. (See Gov. Code, former § 12811; Stats. 1994, ch. 146, § 67, p. 1338; 3 Witkin Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, §§ 6, 7, pp. 44-46.) Nonetheless it is conceivable that the cited regulation, or some other provision, is understood by correctional authorities to afford one in defendant's position a right to an administrative appeal. Even if those authorities believe such a right to exist, however, it cannot supply the predicate for an exhaustion requirement. If this court's search of the governing regulations discloses only a bare possibility of administrative review, it cannot possibly be said that there exists a procedure so "`clearly defined'" ( Endler v. Schutzbank, supra, 68 Cal.2d at p. 168) that defendant's failure to exhaust it can or should bar him from contesting the administrative findings at his sentencing hearing.
Respondent does not dispute defendant's assertion that no right of administrative appeal exists. Respondent contends, however, that "appellant's appropriate remedy is to challenge the parole board's decision by filing a petition for writ of habeas corpus in [the administrative] matter." (Italics added.) The concluding phrase renders the sentence an oxymoron, since habeas is an original judicial proceeding, not a part or adjunct of an administrative proceeding. (Cal. Const., art. VI, § 10.) Nor do respondent's authorities support the notion that pursuit of a habeas remedy is the exclusive means to challenge a parole revocation order; they establish only that habeas is, or can be, a proper means for such a challenge. (Cal. Const., art. VI, § 10 [granting original jurisdiction to courts in habeas matters]; Pen. Code, § 1508, subd. (c) [writ may be made returnable before issuing judge or his court]; In re La Croix (1974) 12 Cal.3d 146, 155, fn. 7 [ 115 Cal.Rptr. 344, 524 P.2d 816] [parolee who is denied a timely revocation hearing "may petition the superior court for a writ of habeas corpus."]; see also 6 Witkin Epstein, Cal. Criminal Law, supra, Criminal Writs, § 54, pp. 585-586 [one wrongly denied parole, or a prerevocation hearing, may employ the writ to vindicate those rights].)
Nor have we ourselves discovered any authority suggesting that habeas is an exclusive remedy in a situation like this one. Such a rule is not recommended, at least under present circumstances, by the considerations that usually justify its adoption, i.e., judicial economy, fairness, or interagency comity. Defendant was already standing before the tribunal that had the power and duty to determine his entitlement, if any, to presentence custody credits. The only apparent effect of requiring him to file a habeas petition would be to generate a multiplicity of proceedings. It is difficult to see any advantage to any of the participants in requiring defendant to initiate a whole new proceeding in order to inquire into the basis for and soundness of the parole authorities' actions.
Nor would the requested hearing work any great infringement on the powers of executive authorities. The validity of the parole board's order was not at issue. That agency had ordered defendant remanded to custody, and he was duly remanded in accordance with that order. He sought to challenge only the order's effect on his custody credits in this separate, judicial proceeding. Defendant's entitlement to credit was of no apparent moment to the executive branch. It was peculiarly of concern to, and exclusively within the competence of, the judicial branch as embodied in the sentencing court. Defendant was going to serve the entire time directed by parole authorities, and then some. The only question was how much longer he would remain incarcerated under the new judgment of conviction entered here. In answering that question, the court threatened at most to reexamine the factual basis and procedural circumstances of the executive acts in question for the purpose of determining what effect they should have on the court's own judicial act.
We conclude that there was no basis for relegating defendant to a seemingly nonexistent administrative remedy.
III. Issue Preclusion
For reasons similar to those we have already noted, the record before the trial court could not justify giving the administrative findings conclusive effect under the doctrine of collateral estoppel (issue preclusion). We assume without deciding that a finding on a disputed issue in a parole revocation proceeding could, if embodied in an order satisfying the conditions for issue preclusion, prevent the defendant from relitigating, in a later proceeding, the matters thus decided. (See Lucido v. Superior Court (1990) 51 Cal.3d 335, 345, fn. 7 [ 272 Cal.Rptr. 767, 795 P.2d 1223].) Here, however, there was no showing, and on this record it does not appear, that the conditions for issue preclusion were present. One of those conditions is that the prior adjudication must be "final and on the merits." ( Id. at p. 341.) This has often been said to mean that the decision has become immune to "direct attack," i.e., the opportunity for review by direct appeal has expired or been exhausted. ( Id. at p. 342; People v. Sims (1982) 32 Cal.3d 468, 486 [ 186 Cal.Rptr. 77, 651 P.2d 321] [administrative decision was final for issue preclusion purposes where statutory time to seek review by mandamus had expired].) Here it is difficult to see how this test could ever be satisfied because, as we have noted, there appears to be no opportunity for a direct administrative attack on the findings.
A more nuanced line of authority indicates that the "finality" contemplated by the issue preclusion depends on whether "`the decision to be carried over was adequately deliberated and firm. . . .'" ( Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936 [ 190 Cal.Rptr. 29], quoting Rest.2d Judgments, § 13, com. g.) Obviously, a decision that is explicitly tentative should be denied preclusive effect in later proceedings. ( Sandoval, supra, at p. 936.) However a decision may be sufficiently final to bar relitigation of issues if the circumstances indicate that it was resolved conscientiously enough to justify giving it such effect. Factors supporting such a conclusion include "`that the parties were fully heard, that the court supported its decision with a reasoned opinion, [and] that the decision was subject to appeal or was in fact reviewed on appeal. . . .'" ( Id. at p. 936, quoting Rest.2d Judgments, § 13, com. g.) Here, the third factor is absent, and if defendant's claims are credited, the first and second are as well. Nor do we discern any other consideration favoring the granting of conclusive effect to the parole revocation findings.
IV. Discretion
Respondent asserts that "the trial court did not abuse its discretion by refusing to relitigate . . . the validity of the parole revocation. . . ." We know of no basis to conclude that this was a matter within the court's discretion. It would appear that defendant was either barred from relitigating the matters at issue or was entitled to do so. None of the preclusive doctrines we have mentioned is entrusted to trial court discretion.
With this assertion respondent seems to tacitly concede that the trial court had the power to make findings at variance with those of parole authorities.
Even if this were the correct standard, it would not insulate the ruling here from reversal. "`"`To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision.' [Fn. omitted.]" [Citations.]'" ( People v. Andrade (2000) 79 Cal.App.4th 651, 654, fn. 1 [ 94 Cal.Rptr.2d 314], italics added.) Thus a ruling otherwise within the court's discretion may be reversed where, due to "an erroneous understanding of the law," the court fails to exercise the discretion actually vested in it. ( People v. Downey (2000) 82 Cal.App.4th 899, 912 [ 98 Cal.Rptr.2d 627].) Here the court's ruling rested quite explicitly on a misapprehension concerning the availability of administrative review. Adding this to the several uncertainties raised by defendant about the soundness of the reported administrative findings, the refusal to inquire into them was either an abuse of, or a failure to exercise, such discretion as was vested in the court by law.
DISPOSITION
The judgment is reversed for the sole purpose of reexamining defendant's claimed entitlement to presentencing custody credits.Mihara, J., and McAdams, J., concurred.