In Re Cleaver
The People have appealed (
The questions to be reviewed in the original proceedings involve the validity of the order granting the writ, and further discussion is deferred to follow the resolution of that issue. The People contend that the trial court exceeded the proper scope of inquiry in reviewing the action of the Adult
Statement of Facts
Petitioner, Leroy Eldridge Cleaver, was convicted on March 11, 1958, on two counts of assault with intent to commit murder in violation of
On April 7, 1968, the Chief, Parole and Community Services Division of the Department of Corrections (see
“Circumstances:”
“Subject arrested by the Oakland Police Department on 6 April 1968 for violation of
section 245 b PC (Aslt. on Peace Officer).”“At approximately 2109 hours, 6 April 1968, Officers Jensen and Darnel, OPD, radioed stating we are having a gun battle at 28th and Magnolia. Numerous units responded to the scene. An extensive gun battle ensued, lasting approx. 1 hour and 21 minutes with approx. two thousand shots being fired. The encounter resulted in the residence at 1218, 28th, catching on fire from a tear gas grenade. The following suspects surrendered: [there follow the names of eight individuals other than petitioner‘s]. All of these suspects have tentatively been identified as members of the Black Panther Party.”
“Subject was observed and identified by Sgt. E. Hilliard, OPD Vice Control Division, as the individual, at time of surrender, throwing out a carbine rifle and an automatic pistol.”
“The incident was unprovoked. The Oakland officer were [sic] routinely checking out a suspicious person near a white Ford bearing Florida license plates when they were fired upon by the foregoing individuals.”
“Charges:”
“1. Leroy Cleaver violated Condition 8 of his Conditions of Parole by his association with individual[s] of bad reputation.”
“2. Leroy Cleaver violated Condition 7 of his Conditions of Parole by his control and possession of firearms.”
In accordance with the recommendation contained in the report, the Adult Authority forthwith cancelled petitioner‘s parole, ordered his return to prison, and refixed his term at maximum.
A second report dated April 10, 1968, was thereafter presented to the Adult Authority. It states as follows:
“Reason For Report: “On 3/22/68 Eldridge Cleaver was given a one week out of state visit permit to attend TV shows in Chicago and New York, S to leave California on 3/24/68 and to return to California on 3/30/68. At the time Cleaver was given the travel permit he was instructed by the Unit Supervisor, Issac Rivers, to report to the District Office immediately
on his return to California and no later than April 1, 1968. S did not report as instructed and was not heard from until his arrest in Oakland, California on 4/6/68. An attempt was made to contact S on 4/4/68 to ascertain why he had not reported, but no answer was received at his residence. “On 4/6/68 at approximately 10:30 PM Cleaver along with seven other men (tentatively identified as Black Panthers), was arrested in Oakland, California by officers of the Oakland Police Dept. The arrest came after a 90 minute gun battle in which two police officers were wounded, one suspect, Bobby James Hutton, was killed and two suspects were wounded. Cleaver was one of the wounded. According to the Police the altercation started when two police officers were fired upon when they stopped to investigate a suspicious person. Cleaver was positively identified by Sgt. E. Hilliard of the Oakland Police Dept. as having in his possession a carbine rifle and an automatic pistol at the time of surrender. The Oakland PD advises that the Alameda County District Attorney has issued a complaint alleging violation of
Section 217 PC (Assault w/intend to commit Murder) against Cleaver and the others arrested. The PD also advises additional charges are pending. Along with Cleaver and the several others at the time of arrest was Warren Wells who has a police record dating back until 1960. He was last released from jail on February 15, 1968. Also arrested with Cleaver was David Hilliаrd a “Captain” in the Black Panthers, who was charged with a misdemeanor firearms violation after a February 25 arrest. In addition, Bobby Hutton, the killed suspect, had a police record. As indicated, Cleaver was shot (in the leg) during the exchange of gun fire. He was taken to Highland Hospital for treatment and Oakland PD notified California Dept. of Correction‘s personnel. There was concern that other Black Panthers might attempt to liberate him since this was a night of national urban unrest following Dr. King‘s assassination. For this reason, CDC personnel transported Cleaver to San Quentin and shortly thereafter to CMF. Special Action was taken by the Adult Authority 4/7/68 to cancel parole.”“Charges Specified:”
“1. Leroy Eldridge Cleaver violated Condition 7 of the Conditions of Parole by having in his possesion and control firearms.”
“2. Leroy Eldridge Cleaver violated Condition 8 of the
Conditions of Parole by associating with individuals of bad reputation.” “3. Leroy Eldridge Cleaver violated Condition 10 of the Conditions of Parole by failing to cooperate with his parole agent.”
“4. Leroy Eldridge Cleaver violated Condition 11 of the Conditions of Parole by failing to obey all municipal, county, state, and federal laws, ordinances, and orders; and failed to conduct himself as a good citizen.”
The recommendation that the action of April 7th be reaffirmed was adopted by the Adult Authority on April 12, 1968.
On May 8, 1968, the Adult Authority served petitioner with a notice of complaint, to which was attached a copy of a report to the Adult Authority, dated April 29, 1968, specifying the first three charges which are set forth in the report of April 10, 1968. Thе content and effect of this notice are hereinafter discussed.
On May 20, 1968, Cleaver filed his petition for a writ of habeas corpus in the superior court in the county in which he was imprisoned, alleging that he was “confined and restrained by reason of a purported cancellation of his parole effected by the Adult Authority on April 7, 1968.” He alleged, “2. The confinement and restraint of petitioner are illegal and void upon these grounds:”
“a. The said cancellation of his parole was not made for cause, as required by statute;”
“b. The said cancellation was made for asserted violation by petitioner of unconstitutional conditions of parole, as hereinafter set forth;”
“c. The imposition of unconstitutional conditions of рarole, and cancellation of parole for violation of such unconstitutional conditions, and without cause as required by statute, deprive petitioner of his liberty without due process of law in contravention of the
Fifth andFourteenth Amendments to the United States Constitution.”
After reciting an alleged history of persecution by the Department of Corrections and the Adult Authority because of his race and his political activities, he states that the unconstitutional conditions of parole consisted of “denying him the right to speak or to write any criticism of state, county or public officials of California“; and that the Adult Authority “on April 7, 1968, unlawfully cancelled petitioner‘s parole for asserted failure on the part of petitioner to adhere to said conditions.”
He acknowledges receipt of the notice of complaint and a copy of the report attached to it. He alleges he is innocent of said charges and that the Adult Authority is threatening to revoke his parole for alleged breach of the unconstitutional conditions. He, nevertheless, particularly alleges that he has been indicted in Alameda County on charges of assault to commit murder in violation of
Further complaints relate to the threat of the Adult Authority to refix his term at maximum and alleged official interference with his right to consult with counsel.
Apparently an order to show cause issued on the petition. A return was filed which sets up petitioner‘s conviction, the action taken by the Adult Authority to fix his term and period of parole, and the аction taken by the Adult Authority to cancel his parole. On the return day, over the objections of the People that the questions raised were questions of law, the court received testimony in support of the petition.
The petitioner testified covering his residence, marital status and his employment since he was released on parole. He testified at length with respect to his alleged persecution by the Adult Authority and by the prison administration because of his political and religious views and his speech and activities in connection with his beliefs.1 He stated he was told that when paroled he “was not to write anything attacking or criticizing any big California politician or the Department of Corrections,” or “about prisons or [his] expеriences in prison.” He testified that his parole officer stated he was very proud of him up until the night he got into difficulties, and that the officer felt there was no significance in the charge of noncooperation because of the alleged failure to report back.2
He also testified concerning the charge that he was unable to properly consult with his counsel. This testimony was buttressed by that from associate counsel who narrated the restrictions and regulations he encountered in interviewing his client at the prison.
A former employer testified that petitioner‘s reputation for truth, honesty and veracity was unimpeachable.
No witnesses were called by the People. They relied upon the reports on which the Adult Authority аcted.
On June 11, 1968, the court made and entered its “Memorandum and Order Granting Writ of Habeas Corpus” in which it concluded, “It is Ordered that petitioner be released from prison forthwith and reinstated on parole.” This appeal ensued.
Nature of the Proceedings Reviewed
[1]
The discrepancy in the terminology used by the Legislature to describe actions which the Adult Authority is authorized to take has caused confusion in this case. The recommendations to and the orders of the Adult Authority not only refer to cancellation of petitioner‘s parole, but the report forms used on April 10th and April 29th reveal that the printed word “suspended” was deleted and “cancelled” substituted in typewriting.
Petitioner contends that the word “cancel” is synonymous with “revoke,” and that the proceedings taken by the Adult Authority must be weighed and reviewed as though decisive and irrevocable action had been taken. The People assert that pleading, practice and proof demanded that the action tаken by the Adult Authority in this case merely constituted a suspension of parole pending further investigation and action by the Adult Authority.
The dictionary and ample precedent semantically support the position of petitioner.3 It is unnecessary, however, to
In his petition petitioner acknowledges, “On May 8, 1968, the Adult Authority served petitioner with a Notice of Complaint, attaching a copy of asserted parole violation charges ... and notifying petitioner that a hearing would be held on an unscheduled date regarding revocation of petitioner‘s parole. ... The Adult Authority threatens to revoke petitioner‘s parole ... and unlawfully confines petitioner and restrains him of his liberty pending the said unscheduled hearing.” (Italics added.) The copy of the “Notice of Complaint” attached to the petition reads in part, “1. You are hereby notified that a written complaint has been filed against you. A copy of the complaint is attached hereto or the charge(s) against you listed hereon. 2. A hearing on the charge(s) will be held at Unscheduled. ... 3. At that time, the Adult Authority or its representative committee of prison officials, as provided by the California Penal Code and Adult Authority Resolutions, will conduct a hearing to determine your guilt or innocence, and when applicable, a determination will be made regarding: X(a) Revocation of parole (
In the points and authorities filed in opposition to the petition the People outlined the procedure followed when a parolee was charged with a violation of parole. They asserted that both suspension and cancellation were only preliminary
Following the entry of the court‘s order on the application for the writ of habeas corpus, the Adult Authority served petitioner with a letter dated June 28, 1968, directing him to appear for a “parole violation hearing” on July 8, 1968 on all four charges, as listed in a copy of a report dated June 14, 1968 in which “cancelled” was again substituted for “suspended.” This notice led to petitioner‘s application to the trial court for an order to show cause and the issuance of such an order. In turn the Authority sought relief by application to this court for an original writ (1 Civ. 25818). After hearing on the order to show cause, the trial court made its order enjoining and restraining the Adult Authority from having a further hearing on any of the charges in question and from suspending, cancelling or revoking petitioner‘s parole upon any of such charges. The Authority then applied again for a writ to nullify the action of the trial court. (1 Civ. 25919.)
In re Brown, supra, in recognizing the procedure which the Adult Authority has attempted to follow with respect to petitioner, states: “Since an order for suspension of parole is preliminary in nature (In re Hall, supra, 63 Cal.2d at p. 117), a less formal and full showing will suffice to sustain it than that required for the final revocation of parole. This distinction permits the Adult Authority to suspend parole on the basis of a belief that good cause exists and to take the parolee into custody pending ultimate disposition of the cause. (See In re McLain (1960) 55 Cal.2d 78, 85 [9 Cal.Rptr. 824, 357 P.2d 1080].)” (67 Cal.2d at pp. 341-342.)
Petitioner recognizes that the Adult Authority is empowered to so act, but claims that in this case the striking of the word “suspended” and the substitution of the term “cancelled” in the report forms of the Adult Authority demonstrates
Petitioner and amicus curiae have suggested that the delay in holding an “Unscheduled” hearing justified the court‘s action in attempting to determine the merits of the charges. The trial court in the memorandum accompanying the order indicated that it recognized that it might not be appropriate to intervene until the criminal proceedings were resolved, or at least until the Adult Authority had held a hearing. Acknowledgedly influenced by its views on the merits, it plunged ahead on the basis that the two months’ delay in granting petitioner a hearing was unconscionable. No precedent for by- passing established administrative procedures has been referred to. If there is undue or unexplained delay in taking final action on pending charges of violation of parole the remedy would appear to be by an order commanding such a hearing, not by usurpation of the jurisdiction of the administrative body which is authorized to hold the hearing. (See Roberts v. Duffy (1914) 167 Cal. 629, 640-641 [140 P.2d 60]; and In re Faucette (1967) 253 Cal.App.2d 338, 340 and 346 [61 Cal.Rptr. 97].)
It is concluded that regardless of its denomination, the action of the Adult Authority, which the trial court and this court are called upon to review, is established by the record to be a retaking of the petitioner into custody pending ultimate disposition of the charges of parole violation, and must be evaluated accordingly. The Legislature and Adult Authority should heed the admonition expressed in another context in Greif v. Dullea (1944) 66 Cal.App.2d 986, 1001 [153 P.2d 581], “The use of the word ‘cancel’ was ill advised аnd unfortunate in that it has afforded ostensible ground for this litigation.”
Scope of Review
Preliminarily the scope of the charges involved must be
The People‘s return set up the arrеst and the criminal charges against petitioner as they were referred to in the reports of April 7th and 10th. They were entitled to set up any authority or cause for the petitioner‘s imprisonment and restraint. (See
The charges of possession and control of firearms and association with individuals of bad reputation were related to the criminal action. The petitioner testified with respect to these charges. He denied possession of any weapons. He admitted he saw weapons, and explained that he merely passed a weapon out a window in response to a police command. He acknowledged association with some of the individuals mentioned, but denied that he had been told that any had criminal rеcords. When questioned further about the events of the evening he was arrested, objection was made and sustained because of the pending criminal proceedings.
Nevertheless, the court noted the charge had been made. It undertook to pass upon the merits of the charge. It concluded in its memorandum “... Cleaver‘s only handling of a firearm (the rifle) was in obedience to a police command. He did not handle a hand gun at all. There was nothing one way or the other to show a conspiracy or a situation calling for the application of the doctrine of aiding and abetting. Hence, nothing supported either the possession of a firearm or the assault charge.” The court also observed, “There is nothing to indicate why it was deemed necessary to cancel his parole before his trial on the pending criminal charges of which he is presumed innocent.”
The court‘s order reinstating defendant on parole could not have been made without expressly or impliedly finding that the pendency of the criminal charges was an insufficient ground to warrant retaking petitioner into custody. The court so construed its action in issuing an order to show cause (see
The problem is now simplified.
This case is governed by In re Payton, supra, 28 Cal.2d 194 which overruled a contention that no cause for suspension was properly set forth. [2] “The contention is answered by the decision of this court in In re Etie, 27 Cal.2d 753 [167 P.2d 203]. Three propositions were necessarily determined by that decision and are controlling here, viz.: (1) That a charge of violation of parole conditions based on an official accusation of a violation of a provision of the Penal Code is proper ground for suspending parole. [3] As there determined the order is preliminary in nature, ‘pending investigation’ and the outcome of the prosecution of the charge. Its finality is determined by the appropriate board or authority when the truth of the charge is shown by conviction and an order of affirmance is made. If the prosecution culminate in acquittal, and no other charges support the suspension, it is to be assumed that the proper authority will vacate the preliminary order suspending parole. [4] (2) That such a preliminary order of suspension is in substantial compliance with
[5] Tо allow inquiry into the merits of a charge of parole violation pending the hearing of a criminal case on which it is based would produce a chaotic situation. A procedure has been presented to test the question of whether there is reasonable or probable cause to support an indictment or information. (
Charges of parole violation which are not predicated upon a pending criminal charge do not present the same problem. Nevertheless, as pointed out in In re Gomez, “... affording parolees notice and hearing and a reasonable opportunity to rebut charges against them before final revocation of parole will ... discourage needless judicial review. ...” (64 Cal.2d at p. 594, fn. 1.) No policy indicates that orderly administrative procedures, prescribed by law, should be overturned by giving the prisoner whose parole is revoked an immediate judicial review of the merits of the charges before the Adult Authority has аcted. If there are unreasonable delays, the remedy, as noted above, should be by an order commanding the hearing.
In this case each charge is documented in an official report.petitioner and the trial court, in disregarding the material in
Petitioner has invited attention to cases in which evidence has been taken in connection with an attack on the action of the Adult Authority. (See In re Gomez, supra, 64 Cal.2d 591; In re Conroy, supra, 117 Cal.App.2d 194; and In re O‘Malley, supra, 101 Cal.App.2d 80.) These cases are not controlling here. They involve review of final action by the Authority and not review of the grounds for returning a prisoner to prison pending further investigation.
[6] It is concluded that the trial court erred in receiving evidence on the merits of the charges contained in the reports and orders of the Adult Authority, and in determining that there was no cause for cancelling petitioner‘s parole and returning him to prison.
[7] Petitioner‘s claim, which he attempted to sustain by his own testimony, that there were unconstitutional conditions attached to his parole, and that his parole has been cancelled because he violated these conditions is not borne out by the record. If, because of his race or political views, there is bias or prejudice against petitioner which affects the truth of the charges which have been lodged against him, it may be presumed it can be shown at the proper time. The сharges made are supported by reports which show facts giving rise to violation of established conditions of parole. Even if lodged with improper motives, that fact would not excuse the occurrence which gave rise to the breach. Although charity should be
[8] “Inmates of state prisons do not have the usual array of federal and state constitutional rights guaranteed to non-incarcerated citizens. [Citations.] ... Although a parolee is not a prison inmate in the physical sense, he is constructively a prisoner under lеgal custody of the State Department of Corrections and may be returned to the prison walls without notice and hearing. (
In view of the conclusions concerning the nature of the action reviewed and the scope of the review of that action, this court does not reach the questions postulated upon review of an order revoking pаrole. No opinion is expressed concerning the right to a hearing, offered in any event in this case by the Adult Authority, or the procedural safeguards which must attend it. (See
Refixing Term
[9] The petition also alleged that the Adult Authority threatens to refix his term at maximum. Since there was reasonable cause to suspend his parole, the Adult Authority was also authorized to refix his term. (In re Brown, supra, 67 Cal.2d 339, 341-342; In re Schoengarth, supra, at pp. 302 and 304; People v. Dorado, supra, at pp. 359 and 360; In re McLain, supra, at pp. 84-85 and 87; In re Smith, supra, at pp. 803-805; In re Etie, supra, 27 Cal.2d 753, 758-759; Fleischer v. Adult Authority, supra, at pp. 46-47.)
Restraints on Consultation with Counsel
Petitioner further complained that his right to consult with his counsel was unduly infringed by the actions of his custodians. (See In re Allison (1967) 66 Cal.2d 282, 286-287 [57 Cal.Rptr. 593, 425 P.2d 193]; In re Ferguson (1961) 55 Cal.2d 663, 676-678 [12 Cal.Rptr. 753, 361 P.2d 417]; In re Cathey (1961) 55 Cal.2d 679, 695-697 [12 Cal.Rptr. 762, 361 P.2d 426]; In re Chessman (1955) 44 Cal.2d 1, 9-10 [279 P.2d 24]; People v. Ray (1960) 181 Cal.App.2d 64, 69 [5 Cal.Rptr. 113]; In re Qualls (1943) 58 Cal.App.2d 330, 331-333 [136 P.2d 341]; In re Snyder (1923) 62 Cal.App. 697, 699-702 [217 P. 777]; and In re Rider (1920) 50 Cal.App. 797, 799-801 [195 P. 965].) The trial court took evidence on this issue, but in view of its order releasing the petitioner from custody, made no findings or order.
The petitioner alleged “that confidential and privileged mail is censored, mail is unduly delayed rendering trial preparation burdensome, and petitioner‘s counsel has not been allowed to employ a dictating machine which is necessary for adequate preparation of the facts of a criminal case for trial.” The release which petitioner secured by the order of the lower court, and the resulting freedom to consult with counsel may have rendered his complaints moot. (See In re Chessman, supra, 44 Cal.2d 1, 10.) No good purpose would be
Original Proceedings
[10] In the post-judgment proceedings the court issued an order to show cause why the People and the Adult Authority should not be held in contempt of an order of June 12, 1968 which admitted petitioner to bail pending review of the order which released him from prison and reinstated his parole. On application of the Authority, an alternative writ of prohibition was issued, returnable at the same time as the hearing of the appeal (1 Civ. 25818). No reply has been made to this alternative writ. The alleged contempt was the Authority‘s intent to hold a hearing on thе pending parole violation charges in order to determine whether petitioner‘s parole should be revoked. It is questionable whether contempt could be properly used under the circumstances of this case to interfere with the actions of an administrative body charged with the responsibility of the custody of the petitioning prisoner. In any event, the decision on the appeal indicates that a peremptory writ of prohibition should issue in the first original proceeding, absolutely and forever, restraining and prohibiting the respondent court from taking any further action or proceedings on that portion of the order to show cause issued July 5, 1968, which purports to initiate proceedings to hold the People and the Adult Authority in contempt of court.
[11] A hearing was held on the order to show cause issued by the trial court insofar as it proposed to enjoin and restrain the Adult Authority from holding and conducting any parole violation hearing, and from suspending, cancelling, or revoking the petitioner‘s parole on any of the four original grounds. The court, following the hearing, enjoined and restrained the Adult Authority from so acting “pending decision of the appeal from this Court‘s order of June 11, 1968 granting a writ of habeas corpus herein, and until the return of the remittitur to this Court following decision of the said appeal.” On application of the Authority an alternative writ of mandate was issued by this court for the respondent court to show cause why it should not be directed to set aside its order оf August 1, 1968 enjoining the Adult Authority as set forth above (1 Civ. 25919). No return has been made to this writ. Here again the power of the court, even in aid of its own
The order in 1 Criminal 7331 is reversed.
Let a peremptory writ of prohibition issue in action 1 Civil 25818.
Let a peremptory writ of mandate issue in action 1 Civil 25919.
Molinari, P. J., and Elkington, J., concurred.