Lead Opinion
Opinion
This habeas corpus proceeding presents the novel question whether the Governor may suspend the parole release date previously accorded a state prison inmate by the Board of Prison Terms and conduct a hearing to determine whether to rescind said release date. We determine the Governor may not do so; for the clear meaning of the pertinent statutes as well as the legislative history of the specific provision the Governor expressly relies upon compel the conclusion that there is no gubernatorial authority to rescind the parole release date of a prisoner still in physical custody.
I.
Petitioner William Archie Fain was in 1967 convicted of murder, rape, sex perversion, kidnaping and attempted kidnaping. In 1969 he was additionally convicted of escape, robbery and kidnaping.
The facts pertinent to the instant case are as follows: In April 1977, after the decision in In re Fain, supra,
II.
Though the power here challenged has apparently never before been asserted by any California Governor, and there is therefore no case directly on point, it is clear that “. . . it is within the province of the courts to review on habeas corpus an executive order made in a proceeding such as this involving personal restraint, for the purpose of ascertaining whether or not the order is jurisdictionally supported.” (In re Knaesche (1937)
Section 3060 provides: “The Board of Prison Terms shall have full power to suspend or revoke any parole, and to order returned to prison any prisoner upon parole. The written order of any member of the Board of Prison Terms shall be a sufficient warrant for any peace or prison officer to return to actual custody any conditionally released or paroled prisoner.”
Section 3061 provides: “It is hereby made the duty of all peace officers to execute any such order in like manner as ordinary criminal process.”
The Governor concedes, as he must, the distinction between the revocation of parole, which refers to the situation in which an inmate has previously been released from prison, and the rescission of an unexecuted grant of parole, i.e., the withdrawal of a release date prior to the commencement of parole. (See In re Prewitt (1972)
This contention rests upon the premise that the Board’s power to rescind is inherent in its power to revoke pursuant to section 3060. Stated differently, the Governor asserts that the power of the Board to revoke parole, and therefore also its inherent power to rescind a parole release date, arise out,pf section 3060. Since his “like power” is identical to that granted the Board under section 3060, the Governor concludes that he too has the power to rescind. The error in this argument lies in the failure of its major premise to recognize the different statutory sources of the Board’s distinct powers to rescind a parole release date and to revoke parole.
Analysis of the parole provisions of the Penal Code demonstrates that the Board’s power to rescind derives not from section 3060 but from section 3040.
Sections 3041.5 and 3041.7 were enacted at a time when significant revisions in the Penal Code were being made in connection with the determinate sentence law, which became effective on July 1, 1977. As required by well-established rules of statutory construction (see People v. Tanner (1979)
In short, the statutory scheme demonstrates that the power to rescind a parole release date is an element of the power to grant or deny parole in the first instance, not an aspect of the power to revoke after parole has actually commenced.
This conclusion is not altered by article V, section 8, of the California Constitution, which the Governor relies upon simply to buttress his expansive interpretation of section 3062. Article V, section 8, provides that “. . . the Governor, on conditions the Governor deems proper, may grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment.” It is urged by the Governor that the power to pardon is similiar to the power to parole (citing In re Peterson (1939)
Although they may be similar in certain very limited respects—such as, for example, that both may effectuate release from in-prison custody— a pardon is nonetheless fundamentally distinct from parole, as are the powers to pardon and parole. For example, the granting of a pardon, which is not restricted to prison inmates, generally operates to restore to a convicted person “all the rights, privileges, and franchises of which he has been deprived in consequence of said conviction or by reason of any matter involved therein.” (Pen. Code, § 4853.) The granting of parole, on the other hand, only applies to prison inmates and does not restore any civil rights. A prisoner on parole remains constructively a prisoner under sentence and in legal custody under the control of prison authorities. (In re Marzec (1945)
These fundamental differences between pardon and parole and, more significantly, the statutory, regulatory
Moreover, long established rules of statutory construction would compel us to reject the Governor’s interpretation of Penal Code section 3062 even if, arguendo, we were able to discern some material ambiguity in that statute and the related parole provisions. “While it is true, the rule of the common law that penal statutes are to be strictly construed has been abrogated by the code [Pen. Code, § 4], which provides that ‘all its provisions are to be construed according to the fair import of their terms, with a view to effect its object [szc] and promote justice,’ it is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute, ...” (Ex parte Rosenheim (1890)
Additionally, under the familiar maxim of expressio unius est exclusio alterius, i.e., that the expression of certain things in a statute necessarily involves exclusion of other things not expressed, which also applies only in the event of statutory ambiguity or uncertainty (Williams v. Los Angeles Metropolitan Transit Authority (1968)
Viewed in the light of the foregoing principles, the statutory scheme provides no room for conjecture that the power to revoke parole includes, sub silentio, the power to grant or rescind a parole release date, even indulging the contention that the statutes are ambiguous on the issue.
The cases relied upon by the Governor in support of the proposition that the power to rescind a parole release date is inherent in the power to revoke parole (Vogulkin v. State Board of Education (1961)
Vogulkin was an action seeking to enjoin enforcement of certain sections of the Education Code, and for an order directing the State Board of Education to conduct a hearing to determine the plaintiff’s fitness to teach in
The definition of “revoke” as that term is used in schoolteacher credential provisions of the Education Code to also mean “rescind” provides no authority for a similar definition of that term as it is used in parole provisions of the Penal Code. Leaving aside other distinctions between the two codes and the situations they regulate, the principal flaw in the purported analogy is that, unlike the parole provisions of the Penal Code and the case law pertinent thereto, the provisions of the Education Code and the case law pertaining to schoolteacher credentials do not make any distinction between revocation and rescission. While a law dictionary definition may therefore be an appropriate extrinsic aid to utilize in defining the scope of the revocation of a teaching credential, much better intrinsic aids are available to discern the meanings of and distinction between “revoke” and “rescind” as those terms are very differently employed in the statutes and administrative regulations that define the parole process.
In re Clutchette, supra,
In re Fain, supra,
Our conclusions that the power to rescind a parole release date is an aspect of the power to grant or withhold such a date, that such power is separate and distinct from the power to revoke parole, and that the power to rescind is not a gubernatorial power, are based primarily on our determination of the plain meaning of the language of the relevant statutes. These conclusions are, however, also logically consistent with the nature of the parole process.
The granting and rescinding of a parole date necessarily occurs during that phase of the parole process in which the prisoner is still in physical custody. The revocation of parole necessarily occurs during a later phase in which the prisoner, though still in legal custody, is no longer in physical custody. Since the factors that warrant parole revocation ordinarily occur when the inmate is “outside the prison walls and enclosures” and may therefore come to the attention of the public and the Governor as well as that of the Board, the legislative grant of authority to revoke to both the Board and the Governor serves an apparent purpose, as illustrated by the legislative history we describe presently. On the other hand, facts justifying the postponement or rescission of a parole date must occur while the inmate is still imprisoned and are therefore far more certain than those warranting revocation to come solely to the attention of the Board. In such circumstances, the need to additionally authorize the Governor to rescind a parole date, which, as indicated, no California Governor has ever before asserted, is not nearly so apparent.
Moreover, if the Legislature intended the Governor to be so authorized it would presumably have prescribed applicable procedures similar to those prescribed for the Board in the exercise of its power to rescind (Pen. Code, § 3041.5, subds. (b)(3), (4)), or those prescribed in connection with the powers and duties of the Governor relative to clemency (Pen. Code, §§ 4800-4852.21) or would at least have indicated that the rescission procedures prescribed for the Board likewise apply to the Governor, as it did in connection with the power to revoke (Pen. Code, §§ 3062-3065). The fact that the Legislature has not indicated the procedures to be followed by the Governor when rescinding a parole release date further reinforces the conclusion that the Legislature never intended to authorize the Governor to rescind a parole release date.
III.
The legislative history of Penal Code section 3062 and the wider historical circumstances of its enactment, which “are legitimate and valuable aids in
The problem of prison congestion was a continual preoccupation of all California’s early Governors. In 1859, for example, Governor John B. Weller stated in a message to the Legislature that San Quentin, then the only state prison, had nearly double the number of inmates it could suitably accommodate. (Sen. J. (10th Sess. 1859) p. 30.)
Finally, in 1893, as a more appropriate means of reducing the prison population, Governor H.H. Markham renewed the earlier recommendations of Governor George Stoneman and the State Penological Commission
In 1901, Governor Henry T. Gage advised the Legislature that he frequently received seemingly worthy appeals for clemency from prisoners ineligible for parole; i.e., repeat offenders or those convicted of murder. “Yet, as the conduct of such prisoners would not without a test justify the Executive in granting a full or even a conditional pardon, it would appear just that such prisoners should be tried by a limited parole with full power on the part of the Executive at any time of terminating the parole granted by the State Board of Prison Directors. ” (First Biennial Message of Governor Henry T. Gage to the Leg. of Cal., 1 Appen. to Sen. & Assem. J. (34th Sess. 1901) p. 40. Italics added.) In response to this request, the Legislature on February 28, 1901, amended the 1893 statute.
The 1901 statute (Stats. 1901, ch. 114, §§ 1 & 2, p. 82), which is set forth in its entirety in the margin below,
In enacting the 1901 statute, which is the genesis of present Penal Code section 3062, the Legislature, like Governor Gage, recognized that the extension of parole to convicted murderers created risks to the public warranting concomitant extension of the power to revoke parole. Such public risks, it bears emphasis, related only to parolees, who by definition were outside the prison walls. This rationale for extending to the Governor the power to revoke parole, which is the only rationale apparent from the available legislative history, obviously did not relate to prisoners still in prison, who presented no greater danger to the public as a result of the 1901 statute than they did previously. Moreover, as explained by Governor Gage when he requested its enactment, the principal purpose of the 1901 statute was to increase the number of convicts released from prison on parole.
The history just described, in addition to the clear meaning of the present parole provisions earlier discussed upon which we primarily rely, support the previously expressed view of this court, which we reaffirm, that “[the Board], not the Governor, has discretion in fixing ... [a] term and granting or withholding parole.” (Azeria v. California Adult Authority, supra,
The executive order issued by the Governor expressly orders the suspension of Fain’s parole release date “until a parole rescission hearing can be held by [his] representative and a decision reached by [him] as to William Archie Fain’s suitability for parole.” Since, as stated, the Governor does not possess the power to withhold a parole release date, which power is committed exclusively to the Board, the Governor has acted in excess of his jurisdictional authority.
The writ of habeas corpus is granted. Petitioner shall be discharged from the custody of the California Department of Corrections, subject, however, to the parole heretofore granted petitioner and the conditions and restrictions contained therein.
Miller, J., concurred.
Notes
The second kidnaping conviction was reversed. (People v. Fain (1971)
Executive Order D-8-83 provides as follows:
“Whereas, William Archie Fain was convicted of first degree murder, kidnapping, rape and sex perversion for crimes committed between June 9, 1967, and June 19, 1967; ánd
“Whereas, William Archie Fain was armed with or used a deadly weapon during the commission of these offenses; and
“Whereas, William Archie Fain was sentenced to death by a jury of his peers, but that sentence was reversed on appeal and a life sentence imposed; and “Whereas, widespread public opposition to William Archie Fain’s parole, based upon the concern that he poses a threat to public safety and cannot be safely assimilated into society, raised a question of William Archie Fain’s suitability for parole; and
“Whereas, allegations of William Archie Fain’s dishonesty, manipulative personality and apparent lack of remorse for his crimes raise questions concerning William Archie Fain’s suitability for parole; and
“Whereas, the parole release date presently accorded William Archie Fain may' have been improvidently granted;
“Now, Therefore, I, George Deukmejian, Governor of the State of California, pur: suant to the authority vested in me by Article V, Section 8, of the California Constitution and Penal Code section 3062, and by reason of the above-stated factors, it is ordered that the parole release date be suspended and that the Board of Prison Terms retain William Archie Fain in custody until a parole rescission hearing can be held by my representative and a decision reached by me as to William Archie Fain’s suitability for parole.”
Knaesche, which involved the revocation of parole rather than the rescission of a parole release date, is the only reported case in which a California Governor has ever before soilght to exercise any authority pursuant to Penal Code section 3062 and the predecessor statutes.
We agree with our dissenting colleague that sections 3041.5 and 3041.7 do not create the power to rescind. As the dissent points out, these two sections simply acknowledge the existence of such power and prescribe the procedure for its exercise. Our point, however, is that by positioning these two Penal Code provisions immediately after sections 3040 and 3041, which latter section also refers to the setting of release dates by the Board, the Legislature demonstrated its comprehension that the power to rescind arises out of section 3040. Stated differently, sections 3040, 3041, 3041.5 and 3041.7 each define phases of a single coherent procedure. Section 3040 creates the power to grant and, derivatively, the powers to deny or rescind a parole release date; section 3041 establishes the times within which such powers may be exercised and the mode of their exercise; and sections 3041.5 and 3041.7 prescribe the rights of prisoners at hearings concerning the granting, denial or rescission of a release date. Given the obvious interrelationship of these various sections,, and the absence therein of any reference whatsoever to the power to revoke parole created in sections 3060 and 3062, we perceive no rational basis for the unexplained “opinion,” announced in dissent, that the source of the power to rescind a release date arises from the power to revoke parole.
The one similarity the Supreme Court acknowledged in Prewitt and Gee was that rescission and revocation both may involve a deprivation of conditional liberty and therefore an inmate is entitled to the same procedural due process protections in each case.
See In re Fain, supra, 65 Cal.App.3d at pages 390-392 where we indicated that the power of the Board to rescind a parole date is an aspect of the agency’s inherent power to reconsider the granting of a parole date pursuant to section 3040.
Peterson was a rather extraordinary case in which the petitioner, an inmate at San Quentin about to be paroled to the custody of the State of Texas, from whose prison he earlier escaped, demanded the right to reject the parole granted him by the California authorities, arguing that parole can only be effective when its conditions are accepted and that it cannot be forced upon him without his consent. In sustaining the petitioner’s argument, the Supreme Court accepted his analogy to the rule that to be effectual, a conditional pardon must be accepted by the prisoner. (Citing In re Marks (1883)
Compare title 15, California Administrative Code, sections 2230-2411 (Parole Release)
Referring to our acknowledgment of this gubernatorial power, the dissent herein concludes that “it seems pointless to hold that the Governor must wait for the parolee’s first step outside the confines of prison before taking action based upon information leading him to believe that the prisoner is not a suitable subject for parole.” (Dis. opn., at p. 559.) We think it hardly “pointless.” First, there is nothing in the record before us to warrant speculation that the Governor has determined to exercise his revocation power with respect to petitioner and we think it wiser to confine this decision to the facts presented. Furthermore, the quoted statement necessarily implies, without discussion, that the cause essential to revoke parole (Pen. Code, § 3063) may consist entirely of facts known prior to release. This is in our view a very doubtful proposition. Without deciding the issue, for it is not now before us, we only point out that it may sensibly be contended that the facts needed to justify the revocation of parole must occur after the first step outside prison or consist of information not available to and considered by the Board prior to the parolee’s release. Since, as we hold, the Governor is not authorized to prevent parole by denying or rescinding a release date, which powers are conferred exclusively on the Board by section 3040, it would seem to follow that the Governor should not be permitted to indirectly exercise and effectively usurp such power by “revoking” parole the moment an inmate steps outside the prison walls.
“Governor Weller explained the causes of this congestion as follows: “The discovery of gold on this coast threw a large number of young men upon us, from the Atlantic States, raised under the parental roof, but finding that gold was then so easily obtained, forgot the lessons they had been taught, and became addicted to the vices (drinking and gambling) which in the early settlement of the State prevailed to such an alarming extent, and are now paying the penalty in the Prison. As many of them are there under fictitious names, their digrace [sz'c] is unknown to distant kindred and friends. But a majority of the convicts are foreigners by birth. Our proximity to the former penal colonies of Great Britain forced upon us a large number of the most desperate and hardened villains who ever disgraced human nature. The South and Central American States, and, indeed every portion of the habitable globe, contributed their share toward swelling this immense army of ruffians. Besides, Criminal Courts, in the early years of our State, owing to the prevalence of crime, sentenced prisoners for very long terms, and, consequently, many old cases are still on hand.” (Ibid.)
Thirty-four years later, in 1893, then Governor Markham offered a somewhat different explanation: “. . . no one believes that the people of California possess less virtue than those of other States, or that we have more criminals in proportion [to other states] .... I believe it is due to two reasons: first, our statutes create such an exceedingly large number of State Prison offenses; second, because the Judges of this State, in their discretion, impose excessive sentences as compared with other States.” (First Biennial Message of Governor H.H. Markham to the Leg. of Cal., 1 Appen. to Sen. & Assem. J. (30th Sess. 1893) p. 24.)
See, e.g., the messages to the Legislature of Governor Frederick F. Low (Sen. J. (17th Sess., 1867-1868) pp. 38-39) and Governor H.H. Markham (Second Biennial Message of Governor H.H. Markham to the Leg. of Cal., 1 Appen. to Sen. & Assem. J. (31st Sess. 1895) pp. 21-22). As stated by Governor Markham, “[w]hen I reflect that there are confined in our State Prisons from two to three times as many prisoners as in any other State in the Union in proportion to our population, I am only too glad of a legitimate excuse to liberate applicants for pardon.” (First Biennial Message of Governor H.H. Markham to the Leg., 1 Appen. to Sen. & Assem. J. (30th Sess. 1893) p. 24.) The use of the pardon power to relieve prison congestion, which was heavily criticized (see, e.g., S.F. Chronicle (Dec. 14, 1886) p. 4, col. 1), appears to have been effectively ended by Governor James N. Gillett, who in 1907 “adopted the . . . rule that no person eligible to parole, other than one establishing his innocence of crime, should be pardoned until he had first applied for and received a parole.” (First Biennial Message of Governor James N. Gillett to the Leg. of Cal., 1 Appen. to Sen. & Assem. J. (38th Sess. 1909) p. 8.)
Biennial Message of Governor George Stoneman to the Legislature of California, 1 Appendix to the Journals of the Senate and Assembly (27th Sess. 1887) page 12. For evidence that even beyond the turn of the century parole continued to be perceived as one of the best means “of lessening the congestion consequent upon having too many prisoners and too few cells to put them in,” see the Second Biennial Message of Governor George C. Pardee to the Legislature of California, 1 Appendix to the Journals of the Senate and Assembly (37th Sess. 1907) page 18. For brief gubernatorial synopses of the early history of the California parole system, see the Second Biennial Message of Governor James N. Gillett to the Legislature of California, Journal of the Assembly (39th Sess., 1911) page 22, and Second Biennial Message of Governor Hiram W. Johnson to the Legislature of the State of California, Journal of the Senate (41st Sess. 1915) pages 34-35.
The statute, which was approved on March 23, 1893, provided in its entirety as follows: “Section 1. The State Board of Prison Directors of this State shall have power to establish rules and regulations under which any prisoner who is now or hereafter may be imprisoned under a sentence other than for murder in the first or second degree, who may have served one calendar year of the term for which he was convicted, and who has not previously been convicted of a felony, and served a term in a penal institution, may be allowed to go upon parole outside of the buildings and inclosures, but to remain while on parole in the legal custody and under the control of said Board of State Prison Directors, and subject at any time to be taken back within the inclosure of said prison; and full power to make and enforce such rules and regulations, and to retake and imprison any convict so upon parole, is hereby
“Section 1. Section one of an act entitled an act to establish board of parole commissioners for the parole of and government of paroled prisoners, approved March twenty-third, eighteen hunded and ninety-three, is hereby amended so as to read as follows: [¶] The state board of prison directors of this state shall have power to establish rules and regulations under which any prisoner who is now or hereafter may be imprisoned in any state prison, and who may have served one calendar year of the term for which he was convicted, and who has not previously been convicted of a felony and served a term in a penal institution, may be allowed to go upon parole outside of the buildings and enclosures, but to remain while on parole in the legal custody and under the control of the state board of prison directors, and subject at any time to be taken back within the enclosure of said prison; and full power to make and enforce such rules and regulations and retake and imprison any convict so upon parole is hereby conferred upon said board of directors, whose written order certified by the president of said board shall be a sufficient warrant for all officers named therein to authorize such officer to return to actual custody any conditionally released or paroled prisoner, and it is hereby made the duty of all chiefs of police, marshals of cities and villages, and sheriffs of counties, and all police, prison, and peace officers and constables to execute any such order in like manner as ordinary criminal process; provided, however, that no prisoner imprisoned under a sentence for life shall be paroled until he shall have served at least seven calendar years. The governor of the state shall have like power to cancel and revoke the parole of any prisoner, and his written authority shall likewise be sufficient to authorize any of the officers named therein to retake and return said prisoner to
Pursuant to a statute first enacted in 1915 (Stats. 1915, ch. 573, §§ 1 & 2, p. 981; see also Stats. 1929, ch. 872, §§ 1 & 2, p. 1930), the terms of which are today set forth in Penal Code section 3063, no parole shall be revoked (by the Governor or by the Board) “without cause, which cause must be stated in the order suspending or revoking the parole.” (See, In re Knaesche, supra, 22 Cal.App.2d at p. 669; see also People v. Anderson (1975)
The trend to increase the number of convicts released upon parole led, in 1909, to the enactment of a statute extending parole eligibility from only those serving a first term to “any person who has been, or who shall hereafter be, sentenced to the state prison . . . under the restrictions now provided by law for the parole of first term prisoners, any act to the contrary notwithstanding.” (Stats. 1909, ch. 236, § 1, p. 364.) This statute, like the parole statutes of 1893 and 1901, was enacted at the express request of the Governor. (See First Biennial Message of Governor James N. Gillett to the Leg. of Cal., 1 Appen. to Sen. & Assem. J. (38th Sess. 1909) p. 8.)
In light of our conclusion that the Governor has no legal authority to rescind a parole release date, we need not of course address the question whether, if he did possess such authority, the prior action of the board and our decision in In re Fain, supra,
Dissenting Opinion
I respectfully dissent.
Contrary to the position taken by the majority, my analysis of the parole provisions of the Penal Code does not persuade me that the power to rescind a parole release date arises from the power to grant parole rather than to revoke it. Nor do I agree that the power to rescind a parole release date is one possessed exclusively by the Board of Prison Terms (Board).
In In re McLain (1960)
In a valiant effort to substantiate its position, the majority engages in an extensive discussion of what, in my perception, is a distinction without a real difference, namely, the Legislature’s use of the words “revoke” and “rescind.” Several California cases suggest, by their use of those terms, that they are interchangeable and, in their practical application, mean the same thing (e.g., In re Fain (1976)
I find further support for my conclusion that the rescission of a parole release date is essentially an exercise of the power to revoke parole in In re Fain, supra, 65 Cal.App.3d 376, 391-392, where the court, citing In re McLain, supra, 55 Cal.2d 78, 84-87, stated that the power to rescind a parole release date had been recognized by the courts “as an adjunct of the [Adult Authority’s] plenary power to ‘suspend, cancel or revoke any parole,’ pursuant to [Pen. Code] section 3060 . . . .” Here, the majority has attempted to avoid the effect of that language by resorting to a dictionary definition of “adjunct” as “something joined or added to another thing but not essentially a part of it.” (Majority opn., ante, p. 551.) In my opinion, the majority has choosen to construe this language in a narrow, constricted fashion, placing undue emphasis upon the words “not essentially a part of
Nor do I find persuasive the majority’s reliance upon Azeria v. California Adult Authority (1961)
Even if it could be said that the power to rescind a parole release date is not inherent in the power to revoke, I view this case as one which should be decided in accordance with the time-honored rule that the law will not require an idle or futile act. (Civ. Code, § 3532; People v. Redmond (1981)
Also, I cannot agree with petitioner’s assertions that the Governor’s executive order is an unconstitutional suspension of the writ of habeas corpus, or that it is in violation of the doctrine of separation of powers or that it is barred by the doctrine of res judicata or collateral estoppel. All of these arguments assume that the Governor intends to make his own decision as to Fain’s parole release date based upon information which has. already been considered by the Board. In my opinion, this assumption is erroneous. As the majority has itself observed, neither the Board nor the Governor may revoke or suspend parole without cause, and in an instance such as that now
I would deny the petition.
Respondent’s petition for a hearing by the Supreme Court was denied September 30, 1983. Richardson, J., was of the opinion that the petition should be granted.
Of course, we must point out that the matter of public outcry has been put to rest by this court; hence it may not constitute the sole basis for revocation of parole.