Opinion
12-29-1986
Previously published at 42 Cal.3d 1075 42 Cal.3d 1075, 728 P.2d 1188 In re Gregory Ulas POWELL on Habeas Corpus. Crim. 24441.
Dennis P. Riordan, San Francisco, under appointment by the Supreme Court, for respondent. John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Ann K. Jensen and Dane R. Gillette, Deputy Attys. Gen., for appellant.
Supreme Court of California,
In Bank.
Dec. 29, 1986.
Rehearing Granted March 26, 1987.
Dennis P. Riordan, San Francisco, under appointment by the Supreme Court, for respondent.
John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Ann K. Jensen and Dane R. Gillette, Deputy Attys. Gen., for appellant.
Ira Reiner, Dist. Atty., Harry B. Sondheim and Richard W. Gerry, Deputy Dist. Attys., Los Angeles, Christopher N. Heard, San Jose, Marvin B. Nachlis and Stapleton & Nachlis as amici curiae on behalf of appellant.
BROUSSARD, Justice.
In 1977 the Board of Prison Terms (BPT) 1 granted Gregory Ulas Powell a 1983 parole release date. The record before us shows that from 1977 his conduct was exemplary. Nevertheless, just before he was to be released on parole, the BPT rescinded the parole date. The Solano County Superior Court granted a writ of habeas corpus directing the BPT to release him on parole. On the People's appeal from the order granting the writ, the Court of Appeal reversed the order with directions to deny the writ of habeas corpus, and we granted a petition for hearing.
The issues presented are the standard of review to be applied to BPT rescissions of parole dates and the sufficiency of the record to support rescission when tested under the appropriate standard.
Powell was convicted of first degree murder and sentenced to death for the 1963 murder of a Los Angeles police officer. After reversal, he was again convicted and sentenced to death. The sentence was modified to life imprisonment. (People v. Powell (1967) 67 Cal.2d 32, 59 Cal.Rptr. 817, 429 P.2d 137; People v. Powell (1974) 40 Cal.App.3d 107, 115 Cal.Rptr. 109.) The crime and the trial are the subject of a book entitled The Onion Field by Joseph Wambaugh. 2
In January 1967, Powell and three inmates on death row used hacksaw blades which he had obtained to saw through the bars of his cell. He eluded searching officers for several hours before recapture. In June 1967, while Powell and Smith were on death row awaiting transfer to Los Angeles for retrial, a guard intercepted notes from Powell to Smith relating to a plan to get into the pro per tank at the Los Angeles County jail, apparently to facilitate an escape plan. In June 1968, while Powell was proceeding in propria persona with respect to the retrial, a woman acted as his runner to bring him legal documents and supplies. He prevailed upon her to smuggle guns into the prison. She was apprehended with three loaded guns hidden in a typewriter which was to be delivered to Powell for his use. (The hacksaw blades in the January 1967 incident were smuggled into San Quentin in Powell's typewriter which earlier had been sent out for repairs.) In April 1969 Powell and five other jail inmates obtained a contraband Allen wrench which they used to remove the screws holding a large metal plate covering a day room window which could provide access to an adjacent street. Investigating officers also found a small file and a portion of a hacksaw blade secreted behind the metal plate. In addition, there were a number of disciplinary violations while Powell was on death row.
Following his release from death row to the general prison population in 1972, Powell's conduct changed dramatically. There were numerous favorable chronos concerning his work handling money in the canteen, dealing with incidents of hostility, and dealing with the media under stressful questioning. Psychiatric reports stated that Powell had improved substantially and continued to improve.
In 1977 the BPT held a parole consideration hearing and granted Powell a June 1983 parole release date under the Indeterminate Sentence Law (ISL). A second parole consideration hearing apparently under the Determinate Sentence Law (DSL) was held in 1979, and the panel again found Powell suitable for parole and gave him a 1986 release date. Since the earlier of the two dates was controlling, his release date remained that set by the first panel. After progress hearings in 1979 and 1980, that date was advanced ultimately to June 13, 1982.
The transcripts of the 1977 hearing refer to the 1967 escape attempt. Powell's file contained references to the other 1967 incident and the 1969 incident. There was an investigator's report stating that the file did not refer to the prior smuggling incident.
In April 1980 Powell was evaluated by a correctional counselor at the California Medical Facility at Vacaville, shortly after his transfer there from San Quentin. In contrast to earlier favorable psychiatric reports, the counselor's report raised some question. The report stated that Powell's antisocial personality was "seemingly" improved, that his behavior could be unpredictable in a stressful situation, and that his violence potential is estimated to be unpredictable if unduly stressed.
In response to that report a scheduled progress hearing was postponed to obtain additional information. The report of psychiatrist Wilson Yandell, M.D., who interviewed Powell, was supportive of parole and release. He suggested that Powell's diagnosis be changed from sociopathic personality to borderline personality disorder and listed features of that disorder that had been demonstrated by Powell in the past: impulsivity and unpredictability with potentially self-damaging acts, unstable interpersonal relationships, inappropriate intense anger and loss of control, identity disturbance, and effective instability. Dr. Yandell's review of Powell's record convinced him that Powell had "psychiatrically improved greatly," with the listed features "becoming less and less characteristic with maturation and change." He opined that Powell was likely to hold present gains in the less controlled setting of the community.
Dr. Yandell stated that he saw Powell "as having a strong commitment to change and having earned respect widely among staff and inmates. He is seen as having a strong support network in the community and 'realistic and organized' plans for life upon eventual release." Dr. Yandell observed that his interview with Powell "revealed a man of slender build who was energetic, courteous, and direct in manner. Mr. Powell was articulate and appeared open as he discussed his life with self-reflection and insight."
In response to the board's specific questions to him about "potential for violence in a free community," Dr. Yandell first noted psychiatrists' poor record in predicting violence. Nevertheless, he enumerated conditions mitigating against the likelihood of future violence by Powell: (1) his "[p]rolonged confrontation with the consequences of past violence and sustained demonstration of a capacity for self-discipline; ..." (2) a strong support system including meaningful relationships to significant others; and (3) plans for a structured lifestyle for organization of his time and energy. Yandell noted that the breakdown of the last two factors would place stressful demands on Powell, as it would on others, but emphasized that his report was intended to support parole and release.
One month after Dr. Yandell filed his report, the movie, "The Onion Field," depicting Powell's crime, was shown on national television. Two weeks later, in February 1982, at the conclusion of a progress hearing where the BPT received communications from the Governor, the District Attorney and the Board of Supervisors of Los Angeles, as well as others, the BPT scheduled a rescission hearing to consider the following matters: (1) psychiatric evaluations as to Powell's violence potential if released; (2) five attempted escapes or escape-related incidents between 1967 and 1969; and (3) two allegations of sexual misconduct in 1978.
At the rescission hearing it appeared that the two incidents indicating possible sexual misconduct had been previously investigated by the BPT. Powell denied any sexual misconduct, and the matters were dismissed. The first, based on a letter by former guard Gravitt, had been investigated by the deputy warden. Gravitt did not claim to have observed misconduct but only circumstances suggesting misconduct may have occurred. After receiving conflicting stories from the staff, he removed the report from the file. On two occasions in 1979, the BPT investigated the report, rejected it, and advanced Powell's parole date for good conduct. The second incident was also rejected when the BPT could not find any evidence indicating sexual misconduct. When, in the midst of the rescission hearing, the BPT became aware of the earlier investigations and the conclusions that there was nothing negative in these matters, the BPT determined that it would not consider them further.
The Northern Outpatient Clinic staff consisting of six psychiatrists and five psychologists reviewed Powell's extensive case file and submitted a report based on the file. That staff did not interview Powell. According to the report signed by Chief Psychiatrist Diane Sutton, M.D., the staff unanimously concluded that questions remained about Powell's ability to adjust successfully on parole and to refrain from violent acts and a criminal life style. The report stated that, although Powell had made some improvement in the institutional setting, the staff believed that improvement might well be superficial and "not likely to hold once he is released from confinement."
The Sutton report expressed three levels of concern: First, the Gravitt letter raised questions "about the stability and good influence of his family."
Second, the Sutton report relied upon a parole investigation report which stated that Powell intended to engage in a dog grooming business but that no such business existed and that Powell had no training or experience in dog grooming. 3 Powell had not received any vocational training and had very little job experience outside of prison, and it was considered likely that he would experience considerable stress as he attempted to earn a living.
Third, in 1961 Powell underwent a craniotomy and at that time it was felt brain atrophy was present. Brain damage particularly when a person is intoxicated serves to lower inhibitions to impulsive behavior and coupled with an antisocial character disorder can lead to very dangerous behavior. There had been no follow-up as to brain damage since 1964, and the staff recommended extensive psychological testing and neurological evaluation. The report was based on Powell's file, not on personal interview or observation.
Doctor Sutton indicated that her group did not have a strong disagreement with Doctor Yandell's report. The difference in viewpoint was based on additional information that her group had which was not available to Doctor Yandell, namely, the reports of sexual misconduct and the parole agent's report on Powell's employment prospects. Dr. Sutton testified that the report would have been more positive had the group not assumed the sexual allegations true.
The chief psychiatrist at Vacaville, Dr. South, examined Powell, interviewed his therapist, studied his file, and submitted a report favorable to parole. He and a panel, which included the counselor who had prepared the 1980 report, concluded that the changes from the earlier favorable psychiatric reports included a reasonable decrease in violence potential. There was increased empathy and tolerance of others, a rational decision-making process, and increased tolerance to emotional stress manifested during the course of therapy. The net result of these factors would be to enhance "the favorable aspects of the prognosis already set forth on previous reports." Dr. South agreed with Doctor Yandell's conclusions that would support parole release, and said that there was no evidence of psychological deterioration after 1977. He disagreed with the Sutton recommendation for further neurological evaluation because Powell had not shown any symptoms which would indicate change from the original tests.
As to the equivocal 1980 report, Dr. South explained that the therapist said his equivocation was due to the limitations of psychiatric predicting. And Dr. South emphasized psychiatric prediction of violence is subject to significant limitations because there is insufficient data involving identical or similar case factors to quantitate the violence probability factors with reasonable certainty.
The BPT ordered rescission of parole for two reasons. First, it found sufficient doubt had been raised by the Sutton report regarding Powell's ability to refrain from further violent acts to warrant rescinding his parole. Although recognizing that the Yandell and South reports were supportive of release, the BPT pointed out that the report stated that psychiatric prediction of future violence is severely limited and that Dr. South felt that any prediction in Powell's case would be speculative. The panel rejected Dr. South's statements to the effect that Powell would handle stress not too differently from other men on the streets because Dr. South was unable to predict with certainty that Powell would be able to maintain psychiatric improvements under stress. The BPT concluded that public protection mandated more extensive testing and psychiatric intervention prior to release.
Second, the BPT concluded that the prior panels that found Powell suitable for parole in 1977 and 1979 committed fundamental error resulting in the improvident granting of parole dates. The BPT concluded that the prior panels only perfunctorily considered the January 1967 escape attempt and did not consider the Los Angeles jail incidents.
The BPT dismissed the other incidents which were set for rescission hearing, the allegations of sexual misconduct. The BPT provided for a parole consideration hearing within six months recommending evaluation of dangerousness in an unstructured setting, reports on the likelihood of his maintaining the psychiatric gains in an unstructured setting, and neurological studies as recommended by the Sutton report.
Powell then sought administrative review but the decision was upheld.
In this habeas corpus proceeding, the superior court judge concluded that there was no good cause for rescission and granted the writ. The judge applied the independent judgment standard of review. The court reasoned that the Sutton report was entitled to no weight whatsoever, primarily because it relied on unproven charges of sexual misconduct, which the BPT was constitutionally prohibited from considering. The court also questioned the reliability of the report because it was prepared when public outcry was "overwhelming," and pointed out that all other psychiatric reports supported release. The court also stated that the 1977 and 1979 BPT had full reports before them of the escape attempts, and rejected the conclusion that the earlier panels committed "fundamental error." The court concluded that the BPT failed to give enough emphasis to Powell's satisfactory prison conduct and expressed grave concern that the public outcry against his release "played a part" in the decision. The court's order granting release has been stayed. I.
The Attorney General argues that the superior court erred when it found that the rescission of Powell's parole was not supported by good cause. Powell argues that the superior court reviews the BPT's rescission order under the independent judgment rule, that the issue on appeal is whether the superior court's order is supported by substantial evidence, and that the court's order is supported. Alternatively, Powell argues that if the substantial evidence rule is applicable to the superior court's review of the BPT rescission, the rescission is not supported by the record.
The BPT is the administrative agency authorized to grant parole and fix release dates. (Pen.Code, §§ 5075 et seq., 3040 et seq.) The BPT may also rescind a parole date for cause. (Pen.Code, §§ 3041.5, 3041.7; In re Fain (1983) 139 Cal.App.3d 295, 302, 188 Cal.Rptr. 653; Cal.Admin.Code, tit. 15, § 2450.) Section 2451 of title 15 of the Administrative Code enumerates matters which must be reported to the BPT and which are grounds for rescission. Subdivision (a) lists assorted disciplinary conduct such as assaults and attempted escapes. Subdivision (b) specifies: "Psychiatric Deterioration. Any prisoner whose mental state deteriorates to the point that there is a substantial likelihood that the prisoner would pose a danger to himself or others when released and who is within 90 days of release shall be reported to the board." Subdivision (c) provides: "Any new information which indicates that parole should not occur. Examples include: an inability to meet a special condition of parole, such as failure of another state to approve an interstate parole; information significant to the original grant of parole was fraudulently withheld from the board; or fundamental errors occurred resulting in the improvident granting of a parole date."
Under the ISL, the BPT exercises wide discretion in fixing an inmate's term and setting his parole date. While a prisoner eligible for parole has the right to apply therefor and to have his application duly considered, he has no right to a parole at any fixed time or at all. The decision to grant or deny parole is committed entirely to the judgment and discretion of the BPT. (In re Schoengarth (1967) 66 Cal.2d 295, 300, 57 Cal.Rptr. 600, 425 P.2d 200; see In re Stanworth (1982) 33 Cal.3d 176, 181, 187 Cal.Rptr. 783, 654 P.2d 1311 et seq.; In re Rodriguez (1975) 14 Cal.3d 639, 651-653, 122 Cal.Rptr. 552, 537 P.2d 384; People v. St. Martin (1970) 1 Cal.3d 524, 538, 83 Cal.Rptr. 166, 463 P.2d 390.) The only limitations placed upon the BPT's authority are that it must file a written definitive statement of its reasons to deny parole and that it may not in fixing the term and denying parole impose an excessive sentence disproportionate to the offense, which constitutes cruel and unusual punishment under our state Constitution. (In re Rodriguez, supra, 14 Cal.3d 639, 651, 122 Cal.Rptr. 552, 537 P.2d 384 et seq.; In re Sturm (1974) 11 Cal.3d 258, 273, 113 Cal.Rptr. 361, 521 P.2d 97.) Under the DSL, the BPT's discretion has been narrowed to some extent, but it still remains broad. (See In re Stanworth, supra, 33 Cal.3d 176, 180, 187 Cal.Rptr. 783, 654 P.2d 1311 et seq.)
In contrast to its broad discretion to grant or deny parole, the BPT's discretion under the ISL in redetermining sentence and in rescinding parole has been limited. Thus in In re McLain (1960) 55 Cal.2d 78, 87, 9 Cal.Rptr. 824, 357 P.2d 1080, the court concluded that "good cause" must exist for an order redetermining sentence and rescinding parole and a convicted person's liberty may not be made to turn upon mere whim, caprice, or rumor. (In re Fain (1976) 65 Cal.App.3d 376, 394, 135 Cal.Rptr. 543; In re Spence (1974) 36 Cal.App.3d 636, 639-640, 111 Cal.Rptr. 782.) Although McLain held that notice and hearing were not required for redetermination of sentence or for rescission of parole (55 Cal.2d at p. 85, 9 Cal.Rptr. 824, 357 P.2d 1080), subsequent cases have imposed notice and hearing requirements.
In Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, it was concluded that due process required the following procedural protections in parole revocation proceedings: "(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." (Id., at p. 489, 92 S.Ct. at p. 2604.)
In In re Prewitt (1972) 8 Cal.3d 470, 105 Cal.Rptr. 318, 503 P.2d 1326, we held that the Morrissey procedures were applicable in parole rescission proceedings as well as parole revocation proceedings. We reasoned: "Although the proceedings of which petitioner complains were not for revocation of parole but for rescission of an unexecuted grant of parole, we can perceive no significant distinction between the deprivation of the right to conditional liberty enjoyed by a parolee after release and the deprivation of the right to achieve such liberty after a grant thereof but before the date fixed for release. In either event the parolee has been deprived of a valuable if limited right to be free (see Morrisey v. Brewer, supra, 408 U.S. at p. 482 [92 S.Ct. at p. 2600, 33 L.Ed.2d at pp. 494-495]; People v. Vickers, supra, ante, (1972) 8 Cal.3d p. 451 [105 Cal.Rptr. 305, 503 P.2d 1313] ), and the same or substantially the same protection must be accorded him in effecting that deprivation. An inmate, accordingly, is entitled to a hearing which substantially conforms to the Morrissey procedures on the question whether an order granting parole should be rescinded as improvidently granted." (8 Cal.3d at p. 474, 105 Cal.Rptr. 318, 503 P.2d 1326.)
In parole revocation proceedings the substantial evidence rule has been applied (In re Gomez (1966) 64 Cal.2d 591, 595, 51 Cal.Rptr. 97, 414 P.2d 33; In re Carroll (1978) 80 Cal.App.3d 22, 30-31, 145 Cal.Rptr. 334), and in accordance with the reasoning of Prewitt, we adopt the same rule for parole rescission proceedings. We have recognized that the critical responsibilities of the administration of the parole system require that the BPT have broad authority in performing its delicate duty to determine when a convicted offender can be safely allowed to return to and remain in society. Thus we recognized that the risk of danger to the public requires that the BPT be permitted to consider illegally obtained evidence and evidence obtained without proper admonitions which would not be admissible in court. (In re Martinez (1970) 1 Cal.3d 641, 649, 83 Cal.Rptr. 382, 463 P.2d 734 et seq.) While the potential deprivation of an inmate's right to obtain conditional liberty precludes any lesser standard than a substantial evidence test, deference to the expertise of the BPT, its important function, and concerns for safety preclude trial court application of the independent judgment rule.
In urging that the trial court apply its independent judgment to the facts, Powell points out that in habeas corpus proceedings the order to show cause hearing is often a proceeding in which issues of fact bearing on petitioner's claim to relief are to be decided. (See In re Hochberg (1970) 2 Cal.3d 870, 873-876, fns. 2, 4, 87 Cal.Rptr. 681, 471 P.2d 1.) Powell's main argument for independent review is by analogy to administrative mandamus under Code of Civil Procedure section 1094.5. In general that section leaves to the courts the establishment of standards to determine which cases require independent judgment review and which cases require substantial evidence review. In the former, an abuse of discretion is established if the trial court finds that the administrative findings are not supported by the weight of the evidence. In the latter, the trial court's inquiry is limited to a determination whether the findings are supported by substantial evidence in the light of the whole record. (Unterthiner v. Desert Hospital Dist. (1983) 33 Cal.3d 285, 293-294, 188 Cal.Rptr. 590, 656 P.2d 554; Frink v. Prod (1982) 31 Cal.3d 166, 174, 181 Cal.Rptr. 893, 643 P.2d 476; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 343-344, 156 Cal.Rptr. 1, 595 P.2d 579.) Courts have decided on a case-by-case basis whether an administrative decision or a class of decisions substantially affects a fundamental, vested right so that independent judgment review is applicable. (Ibid.)
The administrative review doctrine has been applied to deprivation of property rights and to personal economic rights rather than to deprivations of freedom or continued deprivations of freedom. We would not permit incarceration by an administrative board whether or not there was independent review of the board's determinations. Both public and private concerns require a full criminal proceeding. Similarly, the administrative mandamus cases are not applicable to parole rescissions because the public concern for safety and the private interest in liberty are substantially different from the interests involved in the administrative mandamus cases.
In any event, even if we were to assume that BPT decisions were to be reviewed under the rules applied in administrative mandamus, the substantial evidence rule would be applicable. The authority of the BPT to condition parole and limit parole rights is so broad that the conditional liberty may not be categorized as a vested right. (In re Lynch (1972) 8 Cal.3d 410, 417, 105 Cal.Rptr. 217, 503 P.2d 921.) Moreover, parole proceedings are in essence related to penalty for a person who has been convicted of crime after a completed criminal proceeding. Under the administrative mandamus cases, the issue of penalty is left to the administrative discretion; the independent judgment rule is applied only to determine whether there is a basis for imposition of the penalty. (See 8 Witkin, Cal. Procedure (3d ed. 1985) § 264, p. 892.) The basis for the penalty in parole matters is established by the criminal conviction. II.
Although the substantial evidence rule applies to review of the BPT's order of rescission, it does not follow that the order of rescission must be upheld. To the contrary, even under the substantial evidence test, the record fails to warrant rescission.
Because the BPT previously rejected the claims of misconduct and in the instant hearing excluded consideration of the sexual misconduct allegations, the rescission may not be based on those allegations.
As we have seen, under Morrissey, supra, 408 U.S. 471, 92 S.Ct. 2593, and Prewitt, supra, 8 Cal.3d 470, 105 Cal.Rptr. 318, 503 P.2d 1326, the inmate is entitled to be heard, to present witnesses and documentary evidence, and to confront adverse witnesses. To hold that the BPT could exclude from consideration the alleged issues of sexual misconduct and then rescind parole based on evidence as to those issues would violate the due process rights guaranteed by Morrissey and Prewitt.
Although recognizing that the BPT refused to consider the allegations of sexual conduct and subsequently dismissed the issues relating to sexual conduct, the Attorney General argues that reliance on the Sutton report was not thereby precluded. We conclude that while other parts of the Sutton report might properly be relied upon by the BPT, the portion relating to sexual conduct could not properly be given any weight.
Evidence Code section 801, subdivision (b) permits an expert to testify to an opinion based "on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as the basis of his opinion." And pursuant to Evidence Code section 802, an expert on direct examination "may testify to the reason for his or her opinion and the matter upon which it is based, unless he or she is precluded by law from using such reasons or matter. [Citation.] Those parts of an opinion that are based in whole or significant part on matter that is not a proper basis must be excluded upon objection, though the expert may testify to that portion of the opinion which is based on proper matter. (Evid.Code, § 803.)" (People v. Coleman (1985) 38 Cal.3d 69, 90, 211 Cal.Rptr. 102, 695 P.2d 189.) Coleman recognized that opinions based on hearsay are admissible and that the hearsay may be admissible in some cases to explain the opinion and to cross-examine the expert. (Id., at pp. 90-92, 211 Cal.Rptr. 102, 695 P.2d 189.) Accordingly, the fact that the Sutton report was based on reports of others does not preclude its admission or preclude reliance upon it.
However, an expert opinion obviously is not entitled to any weight insofar as it is based on factual assumptions which are false. Although the record may not establish that there was no sexual misconduct as a matter of law, under the circumstances of the instant case the Gravitt letter must be deemed totally discredited. The allegations contained therein had been rejected by the deputy warden when after an investigation he removed the report from the file. Twice the BPT investigated those charges and rejected them. In the instant proceeding, although originally providing that the alleged sexual incidents would be inquired into, the BPT in the midst of the hearing announced that they would not be considered, and its order dismissed the sexual allegations. By excluding the issue of the truth or falsity of the sexual allegations, the BPT precluded any reliance on those matters by it or by experts.
Apart from the sexual matters, there is nothing in the Sutton report which would warrant rescission of parole. The employment problem conceivably might warrant some delay until other plans are established, but it did not warrant rescission. Similarly, at most, neurological reevaluation might warrant a delay until the results were obtained; the reevaluation did not warrant rescission, only negative results could do so. 4 In addition, it should be pointed out that Doctor Sutton indicated general agreement with Doctor Yandell's report claiming that the difference in viewpoint was based on the additional information, which was the Gravitt report and the employment plan.
We conclude that the record is devoid of any competent evidence to show any disciplinary conduct (Cal.Admin.Code, tit. 15, § 2451, subd. (a)), or any psychiatric deterioration following the granting of the parole date (id., subd. (b)). It should also be pointed out that the BPT applied an erroneous standard in rejecting the Yandell and South reports. The BPT rejected them because the doctors were unable to predict with certainty that Powell would be able to maintain psychiatric improvements under stress. Application of that standard would mean that inmates who committed violent crimes could never be paroled because psychiatrists have recognized the inaccuracy of attempts to forecast future violent behavior. (See People v. Murtishaw (1981) 29 Cal.3d 733, 768, 175 Cal.Rptr. 738, 631 P.2d 446 et seq.) While it is true that the BPT must consider the violence potential of parolees, the required guaranties of certainty of nonviolent behavior impose too high a standard. III.
The alternate basis of the BPT decision that the prior panels committed "fundamental error" (Cal.Admin.Code, tit. 15, § 2451, subd. (c)) resulting in the improvident granting of parole is also unsupported by the record. Throughout the various hearings, Powell was candid in admitting that while he faced the death penalty he was always attempting to escape. In granting parole in 1977, the panel discussed one escape attempt and was aware of his record. That record reflected that prior to modification of his sentence to life imprisonment, Powell had attempted to escape and had engaged in numerous acts of misconduct. However, once the sentence was modified there was a dramatic transformation, and Powell became not merely a law abiding prisoner but an exemplary one. The 1977 parole board did not provide for immediate parole but provided for parole six years later during which time his conduct would obviously be scrutinized and he had to continue his improvement.
There was evidence that when the parole date was fixed the BPT was unaware of one of the escape attempts, and while the panel's failure to discover that attempt might be viewed as error, the error cannot on this record be deemed "fundamental." Discovery of the additional attempt might have warranted some delay in the parole date but it would not be major. Nor is there anything in the record to show that because of the escape attempts, a 20-year term of imprisonment constitutes a fundamental error. 5
While reasonable minds might differ as to whether Powell should have been granted a parole date in 1977, it was clearly within the power of the BPT to grant him the date, and there was no fundamental error in the BPT action. The decision to grant the date was valid and final. Powell was thus possessed of the valuable but limited right to be free. In the rescission hearing, the BPT did not find any improper conduct on the part of Powell following the grant of parole, and there is no competent evidence of misconduct, but to the contrary the record shows that Powell's conduct was exemplary after the parole date was fixed. The BPT's concerns as to employment and psychological testing do not furnish a ground to rescind parole but only grounds for a different parole plan and testing. Since we find that the rescission was not supported by the record, we need not determine whether public outcry played a part in the BPT's decision. As a parolee, Powell will remain subject to the supervision of the BPT.
The order appealed from is affirmed.
BIRD, C.J., and REYNOSO and GRODIN, JJ., concur.
MOSK, Justice, dissenting.
I dissent for the reasons stated by a unanimous Court of Appeal. I therefore adopt the opinion written by Justice Scott, and concurred in by Presiding Justice White and Justice Barry-Deal, omitting factual material adequately covered by the majority. 1
It is apparent from the trial court's order that it reweighed the evidence before the board. Appellant contends that the court thereby erroneously usurped the fact-finding power of the board. [I] agree.
The BPT [Board of Prison Terms] is the administrative agency authorized to grant parole and fix release dates. (Pen.Code, §§ 5075 et seq., 3040 et seq.; In re Fain (1976) 65 Cal.App.3d 376, 389, 135 Cal.Rptr. 543 (Fain I ); In re Schoengarth (1967) 66 Cal.2d 295, 304, 57 Cal.Rptr. 600, 425 P.2d 200.) 2 Among the board's powers is the authority to rescind a parole date, for cause. (Fain I, supra, 65 Cal.App.3d at pp. 388-394, 135 Cal.Rptr. 543; In re Fain (1983) 139 Cal.App.3d 295, 302, 188 Cal.Rptr. 653 (Fain II ); see Pen.Code, §§ 3041.5, 3041.7.) The power to rescind is also expressly spelled out in the board's rules, section 2450 of which states that a parole date may be postponed or rescinded "for good cause" at a rescission hearing. (Cal.Admin.Code, tit. 15, § 2450.)
The Fain I court commented that cause for rescission may exist if the authority reasonably determines, in its discretion, that parole was "improvidently granted" under the circumstances which "appeared [when parole was initially granted] and which may have appeared since." (Fain I, supra, 65 Cal.App.3d at p. 394, 135 Cal.Rptr. 543.) However, as the board's power to rescind rather than the existence of cause for rescission was at issue in that case, it is of limited assistance in clarifying precisely when rescission is proper. The board's rules provide more specific guidance. Section 2451 of those rules enumerates matters which must be reported to the board, which may result in rescission proceedings, and which are grounds for rescission. (Cal.Admin.Code, tit. 15, § 2451; see Fain II, supra, 139 Cal.App.3d at p. 304, 188 Cal.Rptr. 653; cf. Fain I, supra, 65 Cal.App.3d at pp. 392-394, 135 Cal.Rptr. 543.) Subdivision (a) of section 2451 lists assorted disciplinary conduct, i.e., assault with a weapon, escape, physically assaultive behavior, or attempted escape. Subdivision (b) specifies: "Psychiatric Deterioration. Any prisoner whose mental state deteriorates to the point where there is a substantial likelihood that the prisoner would pose a danger to himself or others when released...." Finally, subdivision (c) sets forth a broad category, encompassing "Any new information which indicates that parole should not occur. Examples include: an inability to meet a special condition of parole ...; information significant to the original grant of parole was fraudulently withheld from the board; or fundamental errors occurred resulting in the improvident granting of a parole date." (Cal.Admin.Code, tit. 15, § 2451.) Section 2000, subdivision (b), defines "good cause" as "[a] finding by the board based upon a preponderance of the evidence that there is a factual basis and good reason for the decision made." (Id., § 2000, subd. (b).)
The discretion of the BPT and its predecessors in parole matters has been described as "great" and "almost unlimited." "The exercise of this discretion involves the deliberate assessment of a wide array of individualized factors on a case-by-case basis, and the striking of a balance between the interests of the inmate and of the public. [Citation.]" (Fain I, supra, 65 Cal.App.3d at p. 389, 135 Cal.Rptr. 543.)
Although broad, the board's discretion is not absolute. That discretion, including the discretion to determine whether a parole date should be rescinded, is subject to the prisoner's right to procedural due process. (In re Prewitt (1972) 8 Cal.3d 470, 474, 105 Cal.Rptr. 318, 503 P.2d 1326; Fain I, supra, 65 Cal.App.3d at p. 394, 135 Cal.Rptr. 543.) The board's decision must have a factual basis, and may not be based upon a "whim, caprice, or rumor." (See In re McLain (1960) 55 Cal.2d 78, 87, 9 Cal.Rptr. 824, 357 P.2d 1080.) Moreover, although public outcry may properly serve to trigger reconsideration of a parole-granting decision and an inquiry as to whether the decision was an abuse of discretion, the board may not rely solely on public outrage to rescind parole. (Fain II, supra, 139 Cal.App.3d at p. 310, 188 Cal.Rptr. 653.) Nevertheless, the resolution of conflicting evidence in hearings before it is a matter for the board. (In re Carroll (1978) 80 Cal.App.3d 22, 31, 145 Cal.Rptr. 334.)
Habeas corpus is a proper remedy to test the propriety of proceedings before the board. (In re Streeter (1967) 66 Cal.2d 47, 49, 56 Cal.Rptr. 824, 423 P.2d 976.) In habeas proceedings generally, the order to show cause hearing is a proceeding in which issues of fact bearing on petitioner's claim to relief are to be decided. (See generally In re Hochberg (1970) 2 Cal.3d 870, 873-876, fns. 2, 4, 87 Cal.Rptr. 681, 471 P.2d 1; In re Branch (1969) 70 Cal.2d 200, 203, 74 Cal.Rptr. 238, 449 P.2d 174.) Nevertheless, habeas proceedings attacking a parole revocation do not provide a de novo review of the board's determination of cause on disputed facts, with the court reweighing all the evidence before the board on that question. In In re Carroll, supra, 80 Cal.App.3d 22, 145 Cal.Rptr. 334, for example, parole was revoked after a revocation hearing at which the evidence was in conflict as to whether the parolee had committed a burglary. He challenged the revocation by habeas petition to the Supreme Court, which issued an order to show cause returnable to the appellate court. That court stated that the resolution of the conflict was for the board, and concluded that the evidence supported its findings. (Id. at pp. 29-31, 145 Cal.Rptr. 334; see also In re Gomez (1966) 64 Cal.2d 591, 51 Cal.Rptr. 97, 414 P.2d 33 [habeas proceedings before Supreme Court challenging parole revocation; court appoints referee to determine whether petitioner's confession voluntary and adopts referee's findings of voluntariness, but states that resolution of conflicting evidence before board was for that authority]; cf. In re Tucker (1971) 5 Cal.3d 171, 95 Cal.Rptr. 761, 486 P.2d 657 [petitioner challenges parole revocation, alleging that sole evidence before board was his involuntary confession; People dispute claim of involuntariness; referee appointed to make finding on that factual issue].) The fact that this case involves rescission rather than revocation should not alter the respective roles of the board and the court which reviews the board's decision. As [we] pointed out in another context, there is "no significant distinction between the deprivation of the right to conditional liberty enjoyed by a parolee after release and the deprivation of the right to achieve such liberty after a grant thereof but before the date fixed for release." (In re Prewitt, supra, 8 Cal.3d at p. 474, 105 Cal.Rptr. 318, 503 P.2d 1326.)
Accordingly, [I] conclude that it was for the board to resolve conflicts in and determine what weight should be given to the evidence before it, and the trial court erred when it reweighed the evidence.
Respondent's argument to the contrary is unpersuasive. Respondent draws an analogy to the standard of review in administrative mandamus actions, in which the trial court must exercise its independent judgment on the evidence when an administrative decision has affected a vested right. (See, e.g., Bixby v. Pierno (1971) 4 Cal.3d 130, 144-146, 93 Cal.Rptr. 234, 481 P.2d 242.) The fatal flaw in the analogy is that a prison inmate has no vested right in his or her prospective liberty on a parole release date. (Fain I, supra, 65 Cal.App.3d at p. 390, 135 Cal.Rptr. 543.)
At oral argument, respondent urged that Fain I predated the enactment of the Uniform Determinate Sentencing Act of 1976, and that the Legislature has now somehow elevated an inmate's entitlement to prospective liberty on a parole release date to a vested right. The argument is without merit, as it assumes that when Fain I was decided, the board had absolutely unbridled discretion to rescind a parole date. However, when that case was decided, as now, the board had discretion to rescind a parole date for cause, and administrative regulations set out grounds for rescission. (See Fain I, supra, 65 Cal.App.3d at pp. 392-393, fn. 13, 135 Cal.Rptr. 543.)
[I] consider, then, whether the evidence before the board supports its determination that doubt had been raised about respondent's ability to refrain from further violent acts if released.
In making that determination, the board relied primarily on the report of the Northern Parole Outpatient Clinic [ (hereafter NPOCO) ] and the testimony of its chief psychiatrist, Sutton. The conclusions of the report were based in part on an assumption that the allegation of sexual misconduct in the Gravitt letter was true. Primarily because of its reference to that letter, the trial court concluded that the report was entitled to no weight at all.
It is unquestionable that the board could not have based its rescission on the allegation contained in that letter without giving respondent an opportunity to confront and cross-examine adverse witnesses. 3 (See Morrisey v. Brewer (1972) 408 U.S. 471, 488-489, 92 S.Ct. 2593, 2603-2604, 33 L.Ed.2d 484; In re Prewitt, supra, 8 Cal.3d at pp. 473-474, 105 Cal.Rptr. 318, 503 P.2d 1326.) In fact, the board did not rely on that accusation as a basis for rescission; instead, it "dismissed" that issue.
Urging that the NPOC staff could still consider the Gravitt letter, appellant relies on the rule of evidence that an expert may rely on inadmissible matters in reaching his or her opinions (Evid.Code, § 801, subd. (b)). In reply, respondent points out the exception to that rule, i.e., "unless [the] expert is precluded by law from using such matter as a basis for his [or her] opinion." (Ibid.) If we assume arguendo that the rules of evidence were applicable in these proceedings and that the Gravitt allegation was an improper basis for the staff's opinion, it does not follow that the board was required to disregard the entire staff report.
While the court may exclude testimony in the form of an opinion based in whole or significant part on matter that is not a proper basis for such an opinion, it is not required to do so absent an objection and request to strike. (Evid.Code, § 803.) At the hearing before the board, respondent made no such objection to the Sutton/NPOC report or to Sutton's testimony.
Furthermore, the NPOC staff's conclusions were not based solely on the Gravitt letter. The report also expressed concern about the uncertainty of respondent's future plans, and his lack of vocational training or job experience. In addition, the report noted his early lack of impulse control, and that after 1964, there was no follow-up of an early diagnosis of brain damage. When Dr. Sutton testified about the staff's concerns, she acknowledged that had the sexual incidents not occurred, the staff would have had "a more confident view of the influence that [respondent's] family would have over him." However, she did not testify that the staff would then have concluded that respondent was likely to succeed on parole.
In sum, while the evidence was unquestionably in conflict, the resolution of that conflict and the weight to be given the evidence was for the board. Therefore, [I] conclude that the evidence supported the board's finding that a substantial likelihood existed that respondent would pose a danger to others if released. The board's determination had a factual basis and was not based on whim or caprice. As the board's findings were supported by the evidence, it did not abuse its discretion when it rescinded respondent's parole date for that reason. 4
As a separate ground for rescission, the board found that the 1977 and 1979 hearing panels committed "fundamental error resulting in the improvident granting of parole dates." As already mentioned, the board stated that there was no evidence that prior panels had "considered, weighed, or evaluated" respondent's attempts to escape from state prison and Los Angeles County jail in 1967, 1968, and 1969. Appellant contends the trial court erred when it rejected the board's determination and argues that the 1977 and 1979 panels were not aware of all of respondent's attempted escapes. Amicus, the Los Angeles County District Attorney's office, urges that even if both panels were aware of and considered those attempts before granting a parole release date, the 1982 panel was entitled to reevaluate that information and conclude that parole was improvidently granted.
Respondent urges that evidence of those escapes and references to his "escape history" were before both those panels, and that the panels were not required to read into the record all of the evidence which they considered in the decision-making process. Respondent urges that a parole date cannot be rescinded merely because a new panel disagrees with the significance given certain evidence by a prior panel.
It does appear that while respondent's central file included documents referring generally to his escape history and specifically to the 1967 attempted escape from San Quentin, the 1968 gun smuggling incident at Los Angeles County jail, and the October 1969 planned escape from that jail, the file did not contain specific information about the April 1969 attempted escape from jail. Therefore, the trial court's conclusion that the 1977 and 1979 panels had "full reports" before them about respondent's attempted escapes is inaccurate, at least to some extent. As appellant points out, those panels could not have "considered, weighed, or evaluated" specific events of which they were unaware. Nevertheless, [I] need not decide whether this omitted information resulted in the "improvident granting" of a parole date, in light of [my] conclusion that the first ground upon which the board relied justified its rescission decision.
As for the other escape attempts and related incidents, it is well settled that in the absence of a showing that an administrative board has not read, or was not familiar with, the evidence adduced at a hearing, the law presumes that the decision of the board was made after consideration of the evidence. (Steiger v. Board of Supervisors (1956) 143 Cal.App.2d 352, 359, 300 P.2d 210.) [I] recognize that the board has broad power to reconsider its actions, including the power to perceive and correct its own mistakes in granting parole. (See Fain I, supra, 65 Cal.App.3d at pp. 389-394, 135 Cal.Rptr. 543.) As [I] have discussed, the grounds for rescission are numerous and varied, and the grounds set forth in the board's rules are nonexclusive. (Cf. id., at p. 393, 135 Cal.Rptr. 543.) However, [I] cannot agree with amicus that a second panel may conclude that a prior panel committed "fundamental error" within the meaning of section 2451, subdivision (c), solely because it disagrees with the weight given to certain evidence by the first panel. Were [I] to adopt amicus's position, the setting of a parole release date would be a meaningless act.
Finally, [I] address the trial court's concern that public outcry played a part in the board's decision. As the court explained in Fain II, supra, 139 Cal.App.3d 295, 188 Cal.Rptr. 653, public outcry may serve to trigger reconsideration of a parole-granting decision, although it cannot be the reason for a rescission decision. (Id. at p. 310, 188 Cal.Rptr. 653.) Unlike the record in Fain II, the record in this case does not establish that rescission was based on public outcry. Moreover, the constitutional doctrine of separation of powers precludes judicial inquiry into the motivation or mental processes which may underlie action by a nonjudicial agency of government. (Fain I, supra, 65 Cal.App.3d at p. 393, fn. 14, 135 Cal.Rptr. 543.)
The order [should be] reversed and [ ] the writ of habeas corpus [denied].
LUCAS and PANELLI, JJ., concur. --------------- 1 The BPT and its predecessors, the Adult Authority and the Community Release Board, are referred to herein as the BPT. 2 The facts as to the offense and Powell's prior conduct are briefly summarized: Powell and Jimmy Lee Smith were stopped by two police officers because their car failed to have a properly illuminated license plate. Powell drew a gun and ordered the officers into their car and drove toward Bakersfield. At Powell's direction Smith drove onto a field. During the ride and prior to it, Powell and Smith took the officers' handguns and flashlights and money from one of them. Powell asked one of the officers if he had ever heard of the "Little Lindbergh Law," and when the officer replied affirmatively, Powell shot him in the mouth. The other officer fled, and Powell and Smith pursued but he escaped. Apparently, Smith fired additional shots into the first officer, and Powell fired two shots at the escaping officer. Powell was arrested the next day in a car that had been reported stolen. (See People v. Powell, supra, 67 Cal.2d 32, 59 Cal.Rptr. 817, 429 P.2d 137; People v. Powell, supra, 40 Cal.App.3d 107, 115 Cal.Rptr. 109.) Powell was first convicted of a federal offense in 1949, violation of the Dyer Act, when he was 15 years old. He spent all but a few of the years between 1949 and 1963 in federal or state institutions for criminal conduct. At the time of the murder he was on parole after serving time in prison for a marijuana offense. He admitted to the commission of 35 to 40 robberies of grocery and liquor stores prior to the murder, apparently committed while on parole for the marijuana offense. 3 Powell's wife and her former husband had engaged at one time in a dog grooming business. In 1982 she was working as a waitress and cook and receiving some welfare support. 4 At oral argument, counsel for the BPT indicated that the BPT still desires to conduct nonsurgical neurological evaluation. We do not interpret the trial court order to preclude the BPT from arranging for a satisfactory employment plan or from carrying out the evaluation so long as these activities do not delay Powell's release on parole. 5 The Attorney General and amici have cited to a few factual matters not discussed in the opinion. These matters were not set forth in the BPT decision as the basis for its action, and the requirement that the BPT state its reasons for its actions is imposed for the purpose of judicial review. (In re Sturm, supra, 11 Cal.3d 258, 265, 113 Cal.Rptr. 361, 521 P.2d 97 et seq.) Accordingly, we may not consider the additional matters cited. 1 Brackets together, in this manner [ ], without enclosing material, are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than editor's added parallel citations) are, unless otherwise indicated, used to denote insertions or additions by this court. 2 The BPT assumed all the powers and duties of its predecessors, the Adult Authority and the Community Release Board. (See Pen.Code, § 5078, subd. (a).) 3 Correctional Officer Gravitt never reported the incident as a "rule violation," and no disciplinary hearing was ever held on the charge. (See Cal. Admin.Code, tit. 15, § 3312 et seq.) The reference in respondent's file to the accusation has been removed. 4 In a petition for rehearing, respondent points out that although he did not object to the Sutton/NPOC report or Dr. Sutton's testimony at the rescission hearing, he did raise the issue in a written brief in his administrative appeal. He also urges that if counsel waived his objection by failing to raise it at the hearing itself, he was incompetent. However, respondent mistakenly assumes that had such an objection been made at the hearing, the report would have been stricken in its entirety. Such is not the case. Evidence Code section 803, upon which respondent relies, expressly provides that "... the witness may, if there remains a proper basis for his opinion, then state his opinion after excluding from consideration the matter determined to be improper."