*1 Dist., No. 24068. Second Div. [Crim. 1974.] Two. re
In JOHN WESLEY CLUTCHETTE on Habeas Corpus.
Counsel Hinz, Jr., General, Edward A. Chief Assistant J.
Evelle Attorney Younger, General, James, General, E. Assistant and William Attorney Attorney General, Jr., Millar, Frederick R. Russell Attorneys Iungerich, Deputy for Appellant. Branton, Jr., for
Leo Respondent.
Opinion
COMPTON, J.The General Attorney an order of the appeals Los Court Angeles for habeas Superior granting petition directing corpus discharge John Clutchette from Wesley custody of Corrections. *3 Department 27, 1966, On was sentenced to state follow- September petitioner prison his conviction of the crime of ing in the second That burglary degree. Code, crime is (Pen. from one to fifteen punishable by imprisonment years 461.) 1966, Petitioner’s term to run on October the began § date of his Code, the by (Pen. 2900). of Corrections reception Department § 10, 1969,
On December term fixed was the California by at six and one-half He was scheduled Authority years. tentatively 20, 1970, however, 16, 1970, to be on paroled April February petitioner was indicted in for the crime of murder and violation Monterey County of Penal Code section assault less (aggravated by prisoner serving than life). 12, 1970, March
On the Adult rescinded its Authority action of Decem- 10, 1969, ber leaving in status of a petitioner without a fixed prisoner term and without a scheduled date. parole 27, 1972, on March
Subsequently, was petitioner on the acquitted indictment, Monterey County which following was, petitioner’s term 10, 1972, fixed the Adult at 10 Authority with years a parole date of November and an date expiration of October 1976. 28, 1973, On June was of violation of petitioner and suspected parole was in in the Los Revocation placed custody Angeles County jail. pro- were ceedings 16, 1973, commenced. On filed this July petitioner pro- in habeas that his six and ceeding one- corpus contending term had in 1973 to his arrest for half-year violation. expired prior parole his to have his term fixed at 6V2 According right October became vested and the of term subsequent refixing at awas He makes no attack on the nullity. present proposed revocation either as to substance or he proceedings procedure, simply that his term has and therefore the Adult has argues expired no over him. jurisdiction
The indeterminate sentence California, law in which has been described as one of the most and enlightened progressive approaches penology and rehabilitation, prisoner vests in the administrative board known as the Adult Authority the jurisdiction to set the term of of an imprisonment individual committed to state at prison any of time within the length statu- minimum and maximum sentence for a
torily offense. prescribed particular Code, (Pen. 3020.) §
Additionally, exercises the and distinct separate (Pen. 3040.) functions, i.e., of Code, The two granting parole. § term and while are fixing granting, actually parole separate concept interrelated and are to best closely exercised combination achieve rehabilitation of the and the When prisoner public. protection fixes a it term and determines grants simply will be best rehabilitation accom- goal safety public a certain close the institution and a confinement in plished period certain outside of the institution. supervision the whole the indeterminate sentence law theory underlying
Since *4 a is is that board of with an evaluation best on-going experts capability needs, to determine and that board must have wide able public prisoner discretion in the ratio between close confinement and determining liberty Authority, (Azeria on v. 193 Cal.App.2d [13 parole. California with 839].) Hence the vested the Adult Legislature Authority Cal.Rptr. to not determine what of time a shall be im only length person (whether in institution or out of an institution on but an prisoned parole) indicated, redetermine that as limited maxi only by to time statutory Code, (Pen. 3020.) mum term. § the case at bar the action of the Adult had the
In that would be effect of under supervision providing petitioner parole a of three after release from the institution. period approximately later refixed term that action had When that for a the effect of he would be under providing parole supervision of about three and ten months. The increase in institutionalization was attributal to the more than two years required litigating Monterey County charges.
The to is first be answered was the act question within its when it rescinded its action of ing authority previous fixing term and a date? setting parole
We need not here concern ourselves with the
of the
procedural aspects
Prewitt,
In re
board’s actions in
of
The order of the Adult shows that the rescission action Authority clearly was based the fact that there were murder charges against upon pending was advised of action. think it im We petitioner petitioner time had not out that at the of rescission been point portant but had a tentative date. Thus we are not only released parole parole Prewitt, supra, with revocation of de While dealing parole. that as far as due is concerned a rescission of clared procedural process date is on a with it did not an revocation expected parole par parole, Im undertake to limitations on the board’s to rescind. authority prescribe however, in the rule due for rescission plicit, requiring procedural process is the notion that the have must an opportunity respond is its action. This in turn the matters which the authority basing upon the need for the existence of reasonable for rescission. implies grounds re Penal Code section 3063 “No shall be or provides: parole suspended cause, voked without which cause must be stated the order suspending While be in the kind or there well a difference revoking may parole.” of considerations which cause” for rescission and “good will provide “good cause” we for revocation need not concern ourselves with that distinction concedes, must, here. Petitioner that the fact that he had as he been indicted and was the institu trial for a murder committed in facing tion, was cause” to rescind his date. Petitioner contends that “good parole the rescission should have amounted to a only “suspension” date but the result is the date was vacated *5 same. tentative and no new one set until after in Monterey County. termination of the trial
Since the of a length prisoner’s sentence affects directly the length of the term of and since a parole is an parole supervision integral part rehabilitation it was process, well within the of the prerogative to rescind the fixing of the sentence as well as the setting date. The parole authority to “redetermine” a sentence as set out in Penal Code section 3020 includes the to rescind a authority previous determination.
Thus, the Adult 12, Authority’s action of March 1970 its rescinding action was previous and for then, cause.” proper “good At that point, sentence was a petitioner’s maximum of 15 unless reduced fur- (In ther action of the Quinn, Adult Authority. re 25 Cal.2d P.2d 799 [154 875]; McNabb, People v. 3 Cal.2d 334].) 441 P.2d [45
The next is whether the Adult question at the it Authority, time con- sidered case on petitioner’s was bound May reinstate simply its order the term at six and one-half We think not. previous fixing years.
The later because, noted, was in effect “de hearing novo” as petitioner’s
566 term. maximum with a that of an unsentenced 15-year status was prisoner McNabb, the correc supra.) Additionally, People v. Quinn, supra; re (In conduct to observe had an petitioner’s had opportunity tional personnel from at 6Vz To reset the interim petitioner’s during period. under in his being have resulted 1966, him would and then parole October at most 10 or 11 months. for supervision 10, the that at disclose of the Adult minutes and files The be entire en banc considered 1972, that body sitting hearing, himself off “walled that It was observed petitioner havior picture. individual.” all, questions staff. He is an aggressive including almost the outside?” Can he be controlled control himself? were “Can he posed of its man the board a conscientious The record discloses performance 11 10 or for which with a only dated dealing responsibility be considered inadequate reasonably could months of parole supervision a certification that is a There presumption rehabilitation. proper that good taken and the action states Authority correctly Dorado, Cal.Rptr. 360 62 Cal.2d (People [42 v. therefor exists. to counter presumption. offers 361].) nothing Petitioner P.2d the indeterminate sentence law that such every “It is fundamental unless and until the acts fix a is for maximum . . . of law is . . . the same whether we are shorter term. The principle (In life re with a maximum term of or maximum term of years.” dealing Mills, 15].) 646 at 653-654 361 P.2d Cal.2d Cal.Rptr. pp. reduced sentence from 15 to 10 it years, When board prop its discretion the fact that con exercised erly notwithstanding reduced. tends it should have been further Lynch,
The recent case of
The order is reversed and the court is directed superior the for habeas denying petition corpus.
Roth, J.,P. concurred.
567 FLEMING, J.Dissenting part. but instead of the order discharging the reversal petitioner, with
I agree the I would direct habeas superior for corpus the dismissing petition the for the cause existed imposition whether good to determine court with the majority on 10 1972. May My disagreement 10-year exercisable of the authority a different view somewhat stems from of events: in relation to the following sequence determined at six term of sentence December 1969—Petitioner’s one-half years. — for indicted in murder of Monterey County Petitioner 1970
February
a officer. correctional sentence vacated. —Petitioner’s term of March 1970 — on the murder Monterey charge. Petitioner March acquitted 1972 of sentence redetermined at 10 years. —Petitioner’s term 10 1972 and, if to redetermine has right whose term it has the term of a to increase necessary, thought Code, this the au- But in determined. 3020.) (Pen. § doing previously before, its has for of what gone write afresh in disregard does not thority sentence is limited by requirement the term of to increase was first articulated the increase be shown. This requirement cause for good 1080], McLain, P.2d Cal.2d out, the order re- insofar as “As already where the court said: pointed state the that it there is no statutory requirement determined sentence But, must in obviously, good ‘cause’ for such redetermination. fact convicted making an order. Even though legally such exist less his sentence at determination of has no vested to the right person thereof, made to turn maximum, not be may his or denial liberty, than whim, redetermining Thus in or rumor. mere upon caprice, [Citations.] order, the conclusion in the sentence, ‘cause’ need be stated no although the absence of good be taken in that such action cannot is inescapable order, and in the is disclosed both case such ‘cause’ cause. In the instant added.) (Italics which the acted.” record upon (1972) 408 Morrissey v. Brewer law as it existed Under the prior *7 (1972) Prewitt 8 484, and L.Ed.2d S.Ct. U.S. 471 92 2593] [33 and hear 318, 1326], neither notice P.2d 503 Cal.3d 470 Cal.Rptr. [105 redeter for a were necessary of cause articulation and statement nor ing McLain, supra, re (In of the sentence. increased the term mination which was to in fact 85, required sup- cause 87.) But the of good pp. presence 568 such an order. If cause is not evident from the good redetermination
port itself, order can be detaining authority by habeas required corpus the detention. justify bench, the Monterey
At murder indictment could not of itself operate séntence, as cause increase term of for the sub- good indictment, of erased the blot of the even sequent judgment acquittal have been based more than though might acquittal upon nothing failure to a reasonable doubt and guilt beyond even prove petitioner’s the facts and circumstances though which about the indictment brought an themselves furnish cause for increase in might good the term of Robart, (People 51]; sentence. v. 29 891 Peo- Cal.App.3d [106 Cal.Rptr. ple Hayko, 726].) v. 604 7 Petitioner’s Cal.App.3d Cal.Rptr. [86 acquittal, more, without have should resulted in of his term reimposition original sentence, of unless cause for of a was sentence good imposition longer established events that occurred between the time of petitioner’s original (December 1969) and its (10 1972). redetermination that in this case a majority opinion appears suggest showing . cause for an increased was good term of sentence because unnecessary the initial sentence visualized three time and redetermined sentence merely reaffirmed and a reimposed parole period of three view the years. In my validity, no parole-time argument possesses for I think it obvious had served his already two time” in the while “parole of the awaiting murder penitentiary disposition on which he was charge ultimately acquitted.
The other relied argument majority upon adopts premise sentence, sentence, that the the vacation of and the subsequent redetermination of sentence are that bear no relation- separate happenings to one But we are another. here with matters that ship directly dealing involve the and its moral sense criminal law basic technique more, from To rule that without can differentiating right wrong. acquittal, result in an increased term of sentence is to insult with future repay past Both at law injury. common sentence and resentence understanding involve a unitary clearly conclusion that from those process, appears decisions which the courts themselves an increased prevent imposing (People without after reversal of an earlier conviction. good Henderson, 482, v. 677]; 60 Cal.2d 386 P.2d Peo- Cal.Rptr. [35 Thornton, ple 327]; v. North 326-327 Cal.App.3d Pearce, 669-670, Carolina v. U.S. L.Ed.2d 725-726 2072].) 89 S.Ct. The uncontrolled exercise of denied the courts because of due of law is Au- to the Adult process equally impermissible thority. *8 fact cause in
However, the existence good the record does suggest that occurred reason of events sentence increase in for an petitioner’s for re- On motion sentence. time of to the subsequent petitioner^ not that this offered to during prove hearing People the following but also committed violated discipline only repeatedly prison offenses: major — at San officer a chair on a correctional Assault with leg
November 1970
Quentin. officer. correctional —Assault with hot coffee on a August and murder. —Involvement escape attempted August officer. a correctional —Theft of handcuff keys December 1971 for incidents, established, furnish cause would ample if summarily These term. at the increased redetermination allow the People prove I would direct the trial court rehearing for the existence of redetermination good
at the increased term.
A for a was denied June rehearing petition respondent’s Court denied 1974. was hearing by Supreme July petition J.,C. was of the be should Wright, opinion granted. petition