*1 Dist., A019142. First Div. Two. Jan. [No. 1983.]
In re WILLIAM ARCHIE FAIN Habeas Corpus.
Counsel General, Robert Attorneys and John K. Van de
George Deukmejian Kamp, Philibosian, General, O. Overoye, Arnold Attorney H. Chief Assistant Dicce, General, L. Anthony Deputy Assistant and Roger E. Venturi Attorney General, Attorneys for Appellant.
Robert Y. Bell for Respondent.
Opinion
MILLER, We consider be used a basis whether can J. of a inmate’s
rescission prison date. Facts
Background Fain) Quentin at San (hereafter William Archie Fain is an inmate Respondent He has of first Prison. served 15 life term. In he was convicted years a 1967 murder, three counts of one of forcible sex forcible count degree rape, perver- sion, two counts of and stemming one count of kidnaping, kidnaping, attempted Fain v. (People from three criminal in June of separate episodes year. 588, 65].) (1969) 633, 70 P.2d The jury Cal.2d 592-595 451 Cal.Rptr. [75 Court, af- (id., fixed the while 592) at death but the punishment Supreme convictions, er- his ordered a new trial because firming Witherspoon penalty 776, S.Ct. (Witherspoon (1968) ror v. Illinois U.S. 510 L.Ed.2d 88 391 [20 Fain, 1770]). 601.) v. (People supra, 70 Cal.2d at p. Court, remand Fain was returned
After to the Stanislaus County Superior In July confined in its retrial. county jail penalty pending retrial while the was still Fain and five fellow escaped pending, prisoners He moved for Fain was than two later. county jail. less recaptured days retrial, venue he not receive a fair of the could change claiming penalty attending trial Stanislaus County pervasive publicity impartial citing 2 Court (Fain both his 1967 crimes and the v. Superior 1969 escape. was 50-51 P.2d This motion 23].) granted. Cal.3d 465 Cal.Rptr. [84 Meantime, and two he (Id., kidnaping was convicted escape, convictions, with the counts of armed these robbery arising from escape; 298 count, (Peo-
exception kidnaping were affirmed the Court of Appeal. v. Fain ple 18 562].) 137 Cal.App.3d Cal.Rptr. retrial,
At Fain’s which penalty conducted in Sacramento eventually Court, County Superior fixed his at life jury punishment imprisonment (In re 1967 murder Fain count.
543], hereafter Fain I.) That court ordered the sentences on the eventually multitude of other offenses committed in to run concurrently with the life sentence (Id., for the imposed 1967 murder. at p.
Fain 18, 1976, was originally June a two- granted release date of of the then-Adult person panel to what is now called the Authority, predecessor *4 Board of (hereafter Prison Terms imminent board), herein. His appellant release received extensive in and press and near Stanislaus publicity County, aroused considerable communicated much of which to public opposition, was and to authority (65 at legislators the area. representing 384.) A month p. date, short of Fain’s Adult release the chairman of the Committee,” convened a Authority “Review which issued a three-person “summary for a whether the report” calling rescission to determine hearing scheduled date parole “in of the commit- appropriate light gravity offenses, ment the inmate’s criminal conduct and his prior history, subsequent (Id., 384-385, while in the of the custody of Corrections.” at Department pp. fn. 6.)
On Fain’s the Marin the Adult petition, Court ordered County Superior not to Authority conduct the scheduled and ultimately rescission hearing, release, ordered Fain’s was without to review holding Authority power rules, decision which had become final under in event and that applicable there was no basis under and rules for revoca- applicable statutory provisions (Id., tion of a 386-388.) at parole. pp. court,
This order, on on that with the trial court both appeal disagreed (Id., 388.) counts. at We observed: deliberative p. “Any body—adminis- trative, judicial, the inherent to reconsider an action legislative—has power taken itby Unless the action is such that it not be set aside or unless recon- (Id., 389.) sideration is no such by law. at We found precluded p. [Citations.]” addition, (Id., 390-391.) and at In preclusion then-existing statutes rules. pp. we that the trial for rescission was opined court’s as to lack of cause finding rules, based an erroneous of the which listed authority’s interpretation “‘ inmate; causes for rescission: . . . conduct Disciplinary inmate; deterioration of new which in- Psychiatric information Any (Id., dicates that We stated that these should not occur.’” at parole p. exclusive, while it were not and even if were that grounds outrage, they “ “did not in ‘new itself command of his nevertheless was rescission parole,” information which and which indicates that should not occur’ required its authority’s consideration with rules. compliance possibility (Id., concluded, however, at 393.) We consideration [Citation.]” existence of is cause cause rescission was since there premature, “[w]hether for rescission to hear- remains be decided the rescission by the authority (Id., .” ... ing
Thereafter, date April board rescinded the 1976 established new parole date which was later advanced April rescission, because credit calculations 1982. In January granting date, found that in the 1976 it committed “fundamental setting had error” had abused its discretion.
When it set date, that 1982 the board be a suitable found that Fain “appears candidate for release on . . and . does not parole, apear represent unreasonable risk danger society.” consistent,
The panel noted “the nature” laudatory exceptional, reports Fain’s prison progress his “realistic release program,” including from his wife support and a minister. *5 near,
In late as Fain’s release drew storm of renewed public outcry over arose his imminent release. The board received petitions containing 62,500 signatures, resolutions four three boards of city councils and super- visors, a petition of Attorney General1 and a Concurrent Resolution Senate of the California Legislature, all of the date. rescission requesting parole
This outcry 17, 1982, resulted in a determine board hearing February (1) whether Fain’s parole should of “extraordinary rescinded because or (2) outcry” whether the board had abused their discretion prior panels resulting The improvident date. board found neither granting parole abuse of discretion nor fundamental errors in the resulting improvident granting of a date. But it that parole nevertheless rescinded Fain’s “there parole, finding is widespread, unprecedented extraordinary public outcry opposition release, information, Fain’s that this public outcry new that quantity of this new quality information should indicate that Fain not be paroled this time.” General, 1It was about time Attorney opined—on this who March had earlier 1977, after the Fain I public outrage decision—that has “limited relevance to the decision to re rescind,” encouraged had scind” and “to avoid reliance on as a cause maintaining outcry “validly while that prompted validly at the and can to look [board]
prompt great change reaffirming release did that plan,” an about-face. While ” showing “there must be a grant parole, Attorney error in the office decision to General’s 2, 1981, in a November letter that to the chairman of the Board of Terms advised a show Prison ing “may expressed concerning of error exist where the imminent public hostility Mr. Fain’s release amounts to new information which not occur." indicates should Fain exhausted and, his administrative remedies after all internal appeals denied, were filed the instant petition writ of habeas The trial court corpus. herein, while considering over Fain’s release public outrage “perfectly understandable” committed, the “heinous crimes” he had considering granted the writ. It held that the in- opposition Fain’s release did not constitute “new formation,” since the 18,000 board received in signatures opposing Fain’s release and “the ‘new’ only is the fact that there were more thing on the 1981 signatures petitions.”
The court noted that “the record shows that the Board been continuously has aware of the even to its decision ‘public outcry,’ setting subsequent existing date.” It found the discussion in our regarding 1976 opinion outcry “dictum” be considered indicating “public outcry may cause to the Board other basis granting to reconsider some authority parole, if ” (Italics added.) applies. The trial court to note found it “more than interesting that when the Board rescinded first date in its basis for petitioner’s was not the existed, clear acting that then but their public outcry finding abuse of discretion on the of the con- Board in that ‘insufficient part prior panel, sideration was to all factors given and crimes’ in the case.”2
The board the trial court’s appealed simultaneously habeas grant corpus, decision, which seeking stay this court. granted by Supreme (order Court denied Fain’s effort to de- vacate the on a four-to-three vote stay filed our nying hearing, 1982). Oct. Fain thus remains incarcerated pending decision.
Discussion *6 I. Res Judicata Fain the contends the board decision which rescinded 1976 parole date and resulted in a 1982 date is under res judicata principles binding 2The trial the finding regard clearly Attorney court’s in this is The General advised correct. of six possible board in rescinding parole finding 1977 reasons for an abuse of discretion “First, setting the of the 1976 date: the minimum number of months panel designated the Second, for Fain’s vicious two panel designated murder. the minimum increment for Fain’s Third, kidnappings, adjust perversion by panel gave upward his sexual force. a zero Fourth, ment for Fain’s two Fain’s attempted kidnapping. panel apparently disregarded rapes. Fifth, three forcible offenses panel gave no increment whatsoever of the 1969 escape, explaining ‘minimally apparent connected to Fain’s con that he was involved’—an sixth, Fain, People (1970). Cal.App.3d tradiction the facts recited in v. 18 137 And at least printed give conduct and panel totally in-prison comments are involved in the factor of crimes, (Italics brutality, no discussion to the seriousness of the to the victims.” damage their original.)
301 because the board habeas defended the decision successfully against corpus attacks.
We do not contention. It is Fain’s do not his agree, arguments support true that res to a final habeas relief. judicata applies judgment granting corpus (In 613, 254, 1206]; re (1971) Crow 4 Cal.3d 483 P.2d Cal. 622 Cal.Rptr. [94 21.127, (Cont.Ed.Bar 1980) Criminal Law Practice 360 May Supp. [“if § the order the writ is affirmed on the ... it becomes granting People’s appeal, conclusive and the doctrine of res judicata applies”].) follow, however,
It does not that res to a case such judicata principles apply as this one where an inmate has rescission in a unsuccessfully attacked parole habeas The out below corpus proceeding. General Attorney correctly pointed that parole rescission occur even date has been may though prior parole A granted. misconduct or some typical parole rescission is based upon prison exists, other cause for rescission. such cause it cannot be contended seriously If board would be had foreclosed from because it rescinding won affirmance previously of a decision a scheduled postponing parole. then,
real is whether “new information” question, such cause exists—whether justifying rescission of the 1982 date “The doctrine of res exists. judicata never intended to so as to a re-examination of the operate prevent same where, between question the same in the interval between the first parties actions, and second new have oc facts have facts materially changed curred which have altered or relations legal rights litigants. 545, (Hurd v. 15, A.L.R. (1931) Albert 214 Cal. 26 P.2d 76 [Citations.]” [3 1348]; 154, see State Farm Ins. L.Ed. (1945) Co. v. Duel 324 U.S. 162 [89 812, 818-819, 573]; 65 S.Ct. Cox v. State Social Board 193 Welfare 776]; Bev. Cal.App.2d 719 Hasselbach v. Alcoholic Dept. [14 Control 1058]; 167 P.2d v. People Spring Cal.App.2d Co. Valley P.2d citing ap [all 1069] Hurd].) (See Witkin, 1971) (2d also 4 Cal. Procedure ed. proving Judgment, §
Thus, the are not res clearly court actions decision prior following however, il- We cannot General’s judicata. equally with the agree, Attorney rescission, Fain that since the decisions logical argument prior upheld in the face of foreclosed from flies the 1982 rescission. This attacking argument *7 this was year board’s that the vehement Fain’s release finding outcry against 1977, it can “new information.” decided in If the issue of outcry 1977, or not decided in hardly “new information” five later. If it was years then, be res hardly if the facts have the matter can since materially changed judicata.
Thus, we to the merits of the action. proceed present
II. Public Does Not Constitute Outcry Cause Rescission for Penal Code section 3063 that no shall be or provides suspended parole cause, revoked without “which or cause must be stated in the order suspending I, revoking (Fain This section parole.” supra, rescission. applies parole 388.) cause, The Cal.App.3d board’s likewise with sec rules require (Cal. Code, tion 2450 Admin. 2450) tit. cause” for requiring “good § rescission. is whether cause” question constitutes “cause” or “good
within the of those meaning provisions.
We begin by that Fain I to that observing does not a definitive answer provide The issue there question. was whether the Adult have been should Authority to reconsider the permitted established date. As we observed previously parole case, in that consideration of the existence of for rescission was cause I, (Fain most, premature. At that case stands supra, Cal.App.3d for the proposition review of a decision public outcry may justify fixing date; it does parole certainly not that continuing public support proposition a basis for outcry provides indefinite of a otherwise- postponement prisoner’s It is justified therefore parole. to review afresh the appropriate principles must our guide analysis.
A. Framework Statutory A number of statutes and administrative rules the exercise of guide board’s discretion in rule dates. The crucial has granting rescinding renumbered, it I. changed, has been since the decision in Fain although date of a life Essentially, parole or rescinded for prisoner may “postponed Code, 15, 2450; cause at good a rescission cf. (Cal. Admin. tit. hearing.” § Fain supra, 8, article 3 of the relevant
Chapter (§ Penal Code 3040 et sets forth seq.) parole-setting rules. Section 3040 the board the rescinding power gives Section 3041 dates for non-DSL prisoners. pris- that release provides (such oners uniform Fain) shall be set in terms a manner “that will provide offenses similar threat to the gravity their magnitude respect and that will with Council public, rules that the Judicial comply sentencing issue and information relevant to the sentencing setting release dates.” Section 3041 directs the board to establish criteria setting release dates so to number of victims of the consider “the doing crime for which the was sentenced and other factors in prisoner mitigation (§ the crime.” set a release aggravation (a).) subd. The board “shall date unless it determines that the offense or of- of the current convicted gravity *8 fenses, or the timing and current or convicted offense or of- gravity past fenses, is such that safety consideration the more lengthy requires incarceration . period (§ (b).) for this individual . . subd.
Section 3041.5 sets forth in connection with set- procedural rights hearings or ting, (1) to postponing rescinding dates. is prisoner permitted therein; review his or (2) her file and enter written material response behalf; ask present, and answer and questions, on his own have speak someone the designated by of Corrections to “insure that Department present all facts relevant to the decision be unless counsel presented,” required by law; some other provision and receive a record of the request proceeding; witnesses to request attend the “and shall be called unless the hearing, they the person conducting (Pen. hearing has reasons to this specific deny request” Code, (id., (c)(3)); subd. all (c)(4)). witnesses subd. question §
Within days board action rescission of set resulting previously date, the board shall send the a written statement forth prisoner setting the action, reason or reasons for its and must within six months set the prisoner’s parole release date in with 3041.5. accord sections 3041 and 3041.5, (§ (b)(4).) subd.
Section 3041.7 provides to counsel at rescission right hearings life sentence such as prisoners Fain. The Board of Prison Terms “shall provide by rule” for inmate inviting prosecutor of the which county committed. The prosecutor must be notified least 30 to the days hearing prior date. Significantly, or his “shall be the sole prosecutor representative representative (Ibid.) interests of the people.”
Section 3042 mandates notice before to various in- meetings parole-setting terested such persons as the trial defense in- judge, attorney prosecutor, and, law enforcement vestigating of a sentenced to agency, prisoner murder, life for first “written next kin degree notice of the person murdered” where such notice was requested. Code, 15, 2028) section
Citing (Cal. the board’s rules Admin. tit. § state: “Any submit information or person may concerning any parolee prisoner and the offenses. Written comments from shall be directed to ex the public ecutive officer of the board who shall forward the comments to prisoner’s (b) file central for the consideration of future parolee’s hearing panels, [¶] . . . not available to hear Any person may submit information which was or comments on a or new information ing panel decision. Comments proposed shall be submitted to the executive officer forward the information who shall the decision review attorney unit district prisoner, parolee, *9 The be into the or comments shall
prisoner parolee’s attorney. incorporated and hearing record considered before the decision is final.” of a the the victims newly enacted “Victim’s Bill of Similarly, Rights” gives the right hearings, crimes to their views at prisoner’s eligibility express and the board to the whether requires consider victim’s views deciding inmate, release the and to in the “a of whether include board’s statement report person pose public safety parole.” (Pen. the would a if released on threat to Code, §
Section the and 3046 tells board to consider recommendations statements sheriff, of submitted the and recommendations judge, district attorney other “interested in the or of such persons granting denying parole.” Code, Admin. (Cal. 2451)
Section 2451 sets forth 12 specified tit. § rescission. justify conduct—none here—which types disciplinary present deteri (Id., (a).) (b) subd. Subdivision of section 2451 specifies “psychiatric rescission, (c) oration” allows rescission subdivision ground finally oc based on new not information which indicates that should “[a]ny cur,” meet a several inability illustrative such as including examples im in the condition or “fundamental errors occurred special resulting (c)’s of a It information” date.” is subdivision “new provident granting clause board “public which the relied rescission based upon justify outcry.” rules sug-
We that nothing statutory observe applicable provisions se, a basis for rescission outcry, that considered as gests per may public parole. board to receive public
Our the dissenting colleague suggests allowing it reduces the reception comment without as a cause rescission using dis. (Cone, opn., to a “meatless bone tossed public public.” input We post, atp. distinguish—and This criticism misses the eloquent point. information, surely the emotion and meant to Legislature distinguish—between anywhere, between mere show of to a release hands opposition prisoner’s to the time, relevant information forward by specific brought former, the context we discuss in fully board’s determination. The as more latter, of law infra, cognizable. applicable constitutionally decision, course, and the Legislature and should role in the board’s can play the dissent’s analogy, has so In this if we borrow provided. light, may provide fit has seen to ensure Legislature constitutional rights.3 with inmate’s devouring food for without thought, 3Moreover, the dissent Rights comment—as requires to the extent victim’s Bill legislation questions application of new post notes—serious ex facto would raised
B. Case Law Decision Involving Factors Parole California *10 “ case, In a the California has ‘In determin- leading Court declared: Supreme whether the be that ing shall privilege granted authority prisoner, the The guided solely by conduct the while incarcerated. good prisoner offense, habits, associations, nature his his his his inclinations and age, prior character, traits of the of his interests probability reformation the ” are security all taken (In (1967) into consideration.’ Cal.2d re 66 Schoengarth 295, 600, 300 425 200].) P.2d Cal.Rptr. [57
A good summary the factors to be taken the into account in making 1030, determination in re In 54 appears Stanley 1037 [126 “Thus, in early Cal.Rptr. history of the California parole system, 524]: Court Supreme in emphasized conduct significance acceptable prison the individual’s Later, for reclamation. fac- potential court noted additional associates, tors—the nature of offense, his prisoner’s age, his his prior habits, inclinations and traits of court note character. also took [Citations.] of a 1952 declaration of Adult con- Authority policy, declaring in-prison ’ ‘ duct and potential (In rehabilitation were of re “paramount importance.” 639, Minnis 749, 997].) 7 Cal.3d 645 P.2d Most 498 Cal.Rptr. [102 recently, court has observed: Authority enables parole] power ‘[The to a give recognition in prisoner’s conduct his efforts toward good prison, rehabilitation, (In and his in readiness to lead a crime-free life re society.’ 639, 552, 14 Rodriguez (1975) 384].) Cal.3d 652 537 P.2d Cal.Rptr. [122 decisions, Parole stated, the court has ‘are in measure occur- based large ” rences to the subsequent commission offense.’ lines, Along these same in Court In re Dunham Supreme reemphasized 63, (1976) 16 Cal.3d 343, 255], 66 545 P.2d Cal.Rptr. “ context, that, revocation discretion is under ‘Any official board vested with obligation (Italics consider all relevant factors. . . original.) In Finally, re McLain P.2d (1960) 55 Cal.2d 357 Cal.Rptr. 87 [9 1080], teaches us denial of to turn mere liberty not made “may upon whim, or rumor.” caprice, in these as
Nothing cases considered suggests public outcry may for rescission of would grounds outcry On the reliance contrary, upon parole. inconsistent with consideration of in- these cases appear emphasis upon 54 conduct and re Cal. prison (In Stanley, rehabilitation potential supra, 1030, 1037), would outcry and exclusive reliance App.3d appear governing Fain’s See In Stanworth case. re Cal.3d 1311], fully P.2d more discussed footnote infra. Dunham, (In re
inconsistent with the mandate that all factors be considered.
, 66.)4
C. Constitutional Considerations of the term “cause” in the relevant statutory provision Interpretation strain the statutory board rule to include would not only a formidable con- framework and settled it would disregard precedent, pose well, of both federal and stitutional under the due clauses question process *11 state Constitutions.
Public role a fundamental role in our democratic but its opinion plays society, rules, in- is limited to the formulation of not their application particular acts, that stances. As the regards legislative recognizes federal Constitution distinction bills of aimed at by prohibiting punishing par- attainder—legislation acts, Const., 9, (U.S. ticular or judicial individuals. art. cl. As regards § functions, (as case) in this acts administrative by agencies exercising judicial in accor- the same It is within of the acting principle applies. power people, sanctions, Constitution, offenses, fix the dance with the to define establish to be made. It which determinations of are by procedure guilt punishment however, decision of would offend our most basic if the concepts justice, sentence, accused, allowed to or innocence of the or the of his were guilt length it, court reaction in case. As the trial put depend upon public particular circus, “Unlike the Roman the roar of the crowd would determine where rules, and life or death of the without our cannot survive gladiator, community worst, or the those rules whether the is the best of us object justice system . . . .” must to all apply fairly that “the ad-
It is true Court has recognized United States Supreme those ministrators of our need considerable latitude operating penal systems 13, 18, 14, 102 18 L.Ed.2d v. Van Curen 454 U.S. systems” (Jago [70 31, the condi- 34]), S.Ct. that a state defining “may specific general authori- considered tions for release and the factors that should be 1, L.Ed.2d (1979) 442 U.S. 8 (Greenholtz v. Nebraska Penal Inmates ty” [60 676, combina- 668, or defined 2100]), 99 S.Ct. and that “there is no prescribed which, shown, (Ibid.) on tion of facts if would mandate release parole.” em conflicts with the argued emphasis on rehabilitation in these cases might 4It Code, very (Pen. law phasis sentencing punishment. § in the current determinate on Stanworth, 176, however, post that it is an ex supra, 33 Cal.3d holds recent case of In re Sentence the Indeterminate sentenced under of someone facto violation consider Fain, Thus, (DSL) applied (ISL) guidelines. only sentencing law using Law determinate vitality. retain regulations thereunder under the ISL and the the case law that evolved 307 however, Grounds for a “statutes or constitutional claim be found in may, rules other with defining charged exercising obligations authority (Connecticut Board Pardons v. Dumschat 452 U.S. clemency.” 158, 165-166, And, 465 L.Ed.2d 10 2460].) the last during years S.Ct. [69 there has been a substantial an in- afforded expansion procedural rights mate in the parole process.
In Morrissey
v. Brewer (1972)
Our state Court Supreme has held that due similar process requires pro- cedures for rescission of since a are parole, prisoner’s liberty rights implicated. (In re Prewitt Cal.3d 1326]; 503 P.2d *12 also, see In re (1974) Sturm 11 Cal.3d 521 P.2d Cal.Rptr. [113 the absence of a [in definitive written statement reasons for 97] denying at a regularly scheduled Adult parole hearing, Authority effectively inmate of deprives due procedural Gee v. Brown 14 Cal.3d process]; 571, 573 231, 536 [122 P.2d to counsel ex- right 1017] [conditional ists at parole rescission due vir- hearings].) These would be process guarantees tually meaningless under the rationale offered this case. by appellant Respon- dent, no matter what the evidence might rationally show as factors related to release, his could be kept for the rest of his life so as those deter- prison long mined to do so were able to obtain sufficient on or votes signatures petitions, resolutions, for each time his release date came under review. “The presence a large measure of discretion in a . . not . does alter fun- parole system damental due process limitation A against decisionmaking. legisla- capricious tive grant of discretion does not amount to a license for behavior.” arbitrary (Block (3d v. Potter Cir. F.2d 1980) “When Parole Board bases its decision factors that bear or no rational to rehabilitation relationship deterrence, it transgresses (Id., its discretion.” bounds of legitimate
The trial court’s
of reliance
is
outrage
condemnation
upon public
supported
by the only authorities we have been
find which have dealt with this
able to
dictum,
declared,
issue. In
the New
Jersey
Court
in a
Supreme
dealing
with the constitutionality restitution as a
condition
requiring
parole, “[I]t
determination,
is undeniable that
over
imminent
such
outrage
case,
as that which has occurred in this
has no
in a
place
proceeding
(In re Trantino Parole Applica-
no
in a
decision.”
weight
given
104, 119].)
tion
Finally, case decided last the Ninth offers com by Circuit year pertinent 1303, 1295, In v. mentary. 1981) Sellars cert. (9th Procunier Cir. 641 F.2d 678], den. the court held U.S. 1107 L.Ed.2d 102 S.Ct. that absolute board officials. immunity from civil suits is for parole required The court suits reasoned: absolute from civil “Judges enjoy immunity rights in order to judicial . . When he keep . decision-making process pristine. case, she weighs merits of a we do the scales to be not want tipped fear of . . litigation. . We must protection believe that the same degree [¶] be accorded to the board officials. Just as process of decision-making the decision-making process fear, must be so must judges kept free from parole board is same dan Without this there protection, officials. ger decision-maker the often difficult might adjudicate impartially cases that added; come before (Italics Irving them.” United States v. accord (7th 1982) Cir. F.2d 496-497.) the court’s decision was Underlying its confidence that or arbitrary inmates are still protected “capricious decisions” (641 by California F.2d at law regulating parole process. 1303.) We would undermine this salutary protection permitting public outrage determine whether granted.
Well established us construe principles statutory interpretation require statutes, (See, where possible, in a manner consistent with the Constitution. e.g., v. Cal.3d Housing Finance Elliott Agency California 1193].) 551 P.2d On the of those as well basis principles, the basis of the framework and we have statutory precedent persuasive discussed, se, we conclude that not constitute cause for public outcry, per of a rescission date.
D. Board’s Decision The genesis of the board’s decision to be the of this might be said opinion court in Fain where we held that newly discovered “new public outrage information” which (65 consideration of required rescission. Cal.App. *14 393.) footnote, 3d at In a the court commented that the board’s developing “ awareness of public hostility to Fain’s release was ‘new information which in not, dicates’—or in the result to be reached the rescission depending upon pro which the ceedings trial court not occur’ foreclosed—that his should ‘parole because it reaches such in pertinent may as whether he be assimilated questions safe, society, to and indeed whether he will be of outside personally prison.” (Ibid., fn. date,
Thereafter, the board to rescind Fain’s 1976 proceeded parole on basis of The board “a abuse of but not found public outrage. significant error, in the improvident resulting commission of fundamental
discretion and of release date.”5 a parole granting disclaim decision,
As to the instant rescission the board took pains “did These panels of abuse discretion by prior parole-granting panels. resulting errors not abuse their discretion and did not commit fundamental Instead, board found of date.” improvident granting in this outcry expressed unprecedented extraordinary public “widespread cause good as to constitute case is new information of such force and magnitude some length, analyzed, for the rescission of Fain’s date.” The board 62,500 signatures which nature and form of the and the means outcry, by were on Fain’s release. petitions opposing gathered toas “evident skepticism
Our finds fault with our dissenting colleague se.” He per the board in fact relied on but public opposition, whether anything which of powers, that we have “overlooked the doctrine separation suggests of the board or mental into the motivation judicial processes precludes inquiry of the individual as to what have been in the minds speculation might (Conc. and members, taken.” be shown the official action might except its To the board contrary, proclaimed post openly dis. opn., not its discretion it had abused outcry reliance and its finding Thus, relies—involving date. the cases which the dissent upon setting parole considera improper action which was the result legislative alleged v. (See Cooper San Francisco City County tions—are inapposite. . . clear that we . 403].) Cal.3d 534 P.2d Cal.Rptr. “[I]t executive ac into the motivation’ ‘inquiry do not engage proscribed of the action on the face tion when we its obvious perceive purpose 596, 609 (Mandel v. itself.” Hodges 728].) 90 A.L.R.3d naked public trial court the error involved in reliance upon aptly exposed determination “The has seen fit to the issue of outcry. Legislature place i.e., Board, the sentencing judge, with a and not upon panel experts, officials, vote.” certainly upon Although prison popular decision and serve reconsideration trigger parole-granting properly I of discretion—as Fain as to whether the decision was an abuse inquiry when, finding absent any held—the board abdicates its statutory responsibilities to rescind outrage it relies of abuse discretion prior panel, parole. *15 facts, action because “insufficient consideration 5As noted in statement this resulted we given to all factors and crimes” case. as Other Factors Outcry Evidence of
III. Our cause for rescis- that the board found dissenting colleague suggests good sion as and revealed than on the bare implicated relying rather by public outcry, of, to, fact He relies the statement which is yielding public pressure. contained in the board’s suf- conclusion that in this case is outcry “[t]he ficient to constitute in- date because it good cause rescission of the parole time, dicates that if Fain were at this he could not be assimilated paroled safely into society his may be personal safety endangered.” as Fain I
It is reaction its possible, suggests, may, depending upon form and reliability, constitute some a board’s evidence of factor relevant to the determination, such as the advisability releasing prisoner particular But, area. there is obviously as as bitter in grave danger irony suggesting well his own prisoner may held because of indefinitely protection, ap- to his ever parent opposition among released portions being anywhere. terms, board’s stated in opinion, conclusionary suggests more. nothing
If the board tois as evidence rely upon public factor relevant to cause, the determination of due process dictates that it make as findings specific to the nature of the evidence Otherwise, and its relevance. exists that the danger board will simply yield to public pressures, for- relying upon conclusionary mulae to rationalize the result and insulate it from review. We have judicial serious question from our examination of the record whether the form and substance of the in public outcry this case would constitute sufficient evidence of other relevant factors such toas rescission of Fain’s justify parole, par- ticularly light rescission, prior and there are event no findings such we consider to be The trial required. court was therefore correct in its conclusion that the board’s action in Fain’s date rescinding was unwar- ranted on this record. decided, however,
We have in deference to board’s authority, matter should be remanded to the board for further review and determination in of our light opinion. The trial court should retain jurisdiction matter, over the pending board’s action.6 disposition 6This unnecessary of the case it makes Fain’s contention that rescission resolve of his amounts to an post “ex facto law” and is therefore unconstitutional for that reason. post Const., (U.S. Ex facto laws are prohibited both the federal and state Constitutions. I, I, 1; Const., art. cl. art. cl. § Cal. art. § § Mere rescission of Fain’s upon good based ex facto post cause would amount Stanworth, 176, however, violation. The supra, recent case In re 33 Cal.3d makes it clear criteria, permitted rely
that if the board upon newly were implemented established or such as independent public outcry, consideration of rescinding this would amount to an Fain’s *16 Miller’s opinion with Justice
GRODIN, I agree J.* did the on nor its briefs appeal Neither in the trial court for the result. except in the event it for further consideration ask that the matter be remanded to has at the board contrary, On the rejected. its were public outcry reliance upon of no abuse had been that there acknowledging all times been quite open date, that it was Fain’s or fundamental error in fixing parole discretion justification I inadequate alone. therefore perceive relying upon public court’s the trial opinion the matter to the board. In view my for remanding affirmed. ought correct case, however, were I to
Two are for the of disposition votes required standoff, thereby an for affirmance there would exist indeterminate vote I court. Since case to another of the automatically requiring reassignment that result and Miller’s to be both to Justice regard disposition preferable I concur. reluctantly colleague, reversal advocated our dissenting flat with the ma ROUSE, I concur J., P. Acting Concurring Dissenting. issue, however, with their agree of the res I cannot jority’s disposition judicata on of position question public outcry. Moreover, parole new date was post ex facto violation. if Fain’s were rescinded and a Sentencing upon sentencing based determinate than Indeterminate considered law criteria rather criteria, this, too, would be ex post Law facto violation. Stanworth,, parole in an inmate but considered for In sentenced under the ISL in 1966 goal uniformity argued of his crime and its under DSL that the DSL’s focus the nature conflicted, among his with the em- committing prejudice, those similar crimes punishment 179.) (Id.,
phasis p. on individual ISL. at rehabilitation former procedural, from ISL to DSL was more than Supreme change Court concluded sentencing change guidelines thereby invoking post principles, noting ex facto law that the 181-182.) (Id., change underlying statutory pp. at “followed and reflected the in the scheme.” characteristics the individual depended The court noted that under ISL release (Id., 182.) that the new rules particular p. Summarizing, of a inmate. at the court remarked in- uniformity activities of the generally attempt reflect “an to achieve and stress the criminal (Id., 186.) personal p. rather than at mate social factors.” declared, us,” not whether “The “thus becomes Supreme critical issue before Court effected, by which standards defen- change in the actual date release has been but whether the (Ibid.) to be been altered to his detriment.” dant’s date release is determined have “was treated under DSL postconviction The court concluded that the defendant’s behavior differently appears It very regulations. contemplated the manner under the 1976 longer no punishment’ behavior is substantially changed postconviction ‘standard of has because ” (Id., “This alter- determining utilized in the same manner in his release date. postconviction behavior disadvantage in the law well be to because his nation defendant’s Thus, (Ibid.) “we given weight fixing been different his conclude has term.” post of ex facto punishment prejudice has been altered to defendant’s in violation standard (Id., principles.” and DSL thus under both ISL stan- Defendant was held entitled to release consideration (Ibid.) dards. * Chairperson Council. Assigned of the Judicial *17 In my (board)1 Board of Prison in this found opinion, good Terms re date, to of In Fain cause rescind Fain’s parole teaching consistent with (Fain I). Cal.App.3d 543] parties, trial court and the of this frame the court majority principal issue as to whether alone is a sufficient rescis- public outcry parole ground sion. This characterization of the of the issue betrays misunderstanding and, worse, board’s action infuses this case with visions of needlessly vigilan- tism, hysteria and abdication When the board its responsibilities. context, stated, removed from such an emotional more question, accurately twofold, i.e., whether or not the board’s awareness of public outcry may give cause, rise to good and, sufficient if which to base rescission of upon parole, so, did the this case rescind Fain’s based on such cause? parole good Based on a fair Fain I record, reading review of the answer to my my both parts question is yes.
The Fain I decision held that, Penal to sections 3060 and 3063 pursuant Code, Code and (now California Administrative title section 2661 2451),2 rescission be based on one of three parole may any specified grounds, § inmate, conduct the in namely, disciplinary by the deterioration of psychiatric mate or “new any information which should occur.” indicates that (Fain supra, The Fain /court held at & 12 & p. 392 fns. that outrage at the of a individual’s release from prospect particular “ constituted prison ‘new information which indicates should not oc that parole cur’ and which . . .” required the . authority’s possibility consideration of (Id., 392-393.) at pp. While that court refrained expressly holding would, itself, Adult Authority’s awareness of such “command” outrage (id., rescission at 393), it awareness was indicated that such p. clearly “ not, ‘new information be which indicates’—or the result to upon depending reached in the rescission .. .—that should not oc proceedings ‘parole [Fain’s] cur’ it because reaches such whether he as pertinent questions safe, assimilated into and indeed whether he will be outside society, personally (id., that, 14). fn. re prison” The court then went to state mand to the Adult its said would be entitled to exercise Authority, body ‘absolute,’ unlimited,’’’discretion decide whether “‘great,’ ‘almost “ ” (Id., Fain’s ‘improvidently granted.’ that, Such analysis inflexi- conclusion far from compels enunciating any rule the Fain ble limiting Adult Authority’s outrage, consideration of public I court took great as as the Adult pains little infringe possible upon
1The Board of Prison Terms is the Authority. successor the Adult Code, pertinent 2Hereafter sections of the California Administrative title shall be referred Rules. to as Parole Board to it statute. entrusted broad discretion in matters Authority’s extremely rely could Authority held that the Adult Stated the Fain I court differently, only where instance a basis for rescission upon public outrage a nature as reaction such Adult determined there was Authority inmate, into socie- be assimilated if could not indicate that a particular paroled, threatened with violence. ty might physical *18 Authority’s the Adult The Fain I court declined to encroach wisely instead, a to adopt within its of broad discretion area expertise, preferring, determine, case-by- on a rule which its members to more flexible would allow basis, rescis- not warrant parole whether should or should public outrage to the due time, protection sion. At the same the court accorded full respect no cir- under of out that the rights potential parolee by process pointing whim, basis for parole mere rumor constitute the cumstances could or caprice reason the inmate to know always precise rescission and that has right Thus, I, authority (Fain rescission. for the at supra, in outrage par- has determined that the exactly why public must it specify informed facilitates ticular case rescission. Such a justifies parole requirement of a decision to rescind and effectively possibility review precludes those to factors such as that such a decision could be based upon improper ac- alludes, creed, labor race, ethnic background, which the majority namely, tivities or views. political
Here, consistently the record shows that the exercised its discretion board cause for rescission good with the of Fain teaching finding relying upon the bare fact relying rather than on by outcry, and revealed implicated public to, states, of, in “The The board’s conclusion part, or yielding public pressure. cause for rescission outcry in this case is sufficient to constitute good public time, he were at this date because it indicates that Fain paroled if be en- safety may his society personal could not assimilated into safely interests or protect A release at this time would not be in the best dangered. ” not (Italics added.) rely board did simply Fain or the That the safety public. “are evidence on the is further evident in its petition finding signatures is with the other evidence conjunction extraordinary [which] (Italics date.” Fain’s parole sufficient constitute cause rescind good added.) us, it bears before of the evidence sufficiency there no issue of
Although on the board relied that some of this “other evidence” noting presumably in its reasons for disposition, the record. For example, appears mentions to Fain’s release expressed [the] specifically relying “opposition on the Board Subcommittee on October 22 and the Senate hearing and Ex Brown that Chairman of Prison Terms.” The shows hearing transcript to receive testimonial were present ecutive Officer Dezember the board out that Fain was set heard from a Ms. who They Goehring, pointed evidence. resides, one victims presently released into the where of his city to be same rape victim, Ulrich, who joined Mrs. of Fain’s and from mother shotgun-murder David Sun heard Police Chief Ms. comments. Goehring’s They Oakdale officer, safety doubts that veteran who 22-year dy, police expressed into the same and welfare would be served by releasing any parolee properly Assemblyman where his live or his committed.3 area victims crimes were area where he would Thurman voiced concern that into an releasing parolee chances back into would increase the “accepted society” parolee’s testimony recidivism and lessen Such his chances successful rehabilitation. mere it is more than or hysteria outrage specifically sup indignation; Fain and the board’s concern for the and best interests of expressed ports safety as well into society as the unlikelihood Fain’s safe assimilation public, the time and in the also bear in mind that area We must geographic proposed. *19 of the thus described was the total hearing input but a small testimony part available for the board’s consideration.
I make one this further observation effect of in the regarding public case. the that the on Although record shows board did not base its decision (thus se it to determine whether such public opposition per making unnecessary for action basis be I believe mere fact of might public that the proper), opposi- tion has some in the board’s place decision. discretionary
The majority finds
in the
to
that
nothing
suggest
public
law
applicable
be
To
I
outcry may
contrary,
considered as
for
rescission.
the
grounds
at
find room for
in our
least some consideration of
Supreme
public opposition
“
” (In
Court’s mandate
of
re Schoengarth
that
‘the interests
public security’
295,
200],
(1967)
600,
66 Cal.2d
P.2d
from
300
425
Cal.Rptr.
quoting
[57
Denne
“all
451])
v.
141
P.2d
People
(1956)
507
Cal.App.2d
[297
(In
relevant factors”
(1972)
re Minnis
7 Cal.3d
645
Cal.Rptr.
[102
997];
,
P.2d
498
also cited in In re
young shotgun Mark an Mark with blast High stop, Oakdale School killed range, in young high fired at short ordered the out Mark’s car and girl passengers two school car, where, gun to his drove them to them to and then point, a remote field he forced disrobe was of first persons. committed various sexual their crimes he convicted acts For these murder, degree rape, perversion kidnaping. forcible He was also convicted forcible sex Hayes raping kidnap a Mrs. His death sentence was later attempting Mrs. Workman. (People v. Fain imprisonment. Cal.Rptr. reduced to life 451 70 Cal.2d Thereafter, 65].) he overpowered guards, company P.2d of fellow inmates who their escaped County jail, subsequently from the convicted recaptured Stanislaus (People v. Fain escape, kidnaping robbery. crimes and armed 562].) also finds in majority the nothing statutes to “that applicable suggest se,
public outcry, per considered as a basis rescission of parole.” Yet the statutes very they examine clearly mandate that be con- public input sidered. Section 2028 of the Parole Board Rules states comments “shall be incorporated into the record and before the hearing considered is (Italics added.) decision final.” Section 3046 of the Penal Code requires board to consider recommendations “interested in persons granting of such denying parole.” Finally, Victim’s Bill Rights requires “shall board consider the statements of next of in victims and kin” deciding Code, whether to release (Pen. 3043; person added.) italics If parole. § authorized public input by those reconsideration of provisions may trigger cannot, maintains, set date already but as the any way majority rescission, constitute cause for I then submit that receive respectfully all is an input idle act—a bone am meatless tossed to the I sure that a public. murder victim’s next of kin their under Bill of exercising the Victim’s rights that, would be Rights, example, to learn while the board must appalled comments, listen their it is forbidden to let those comments affect its legally I decision. suspect would be for it seems Legislature equally appalled, to me that the majority essentially mandate that the nullifying statutory consider public input its decisions. aside
Putting se, whether question opposition, per place has *20 rescission, cause for determining parole with the in my majority disagreement this is over their evident in as to whether the board fact relied skepticism but anything but, se. I do not share their opposition, skepticism; per did, even if I I would be constrained to limit to the board’s stated my inquiry conclusion, reasons (if issue), of the evidence were substantiality whether or not the evidence in the record sustained their position. instance,
In this I fear that the trial court and the have overlooked majority the doctrine of of which separation powers, into the precludes judicial inquiry or motivation mental of the board and processes speculation as what might have members, been minds of the individual board except might shown action by official taken. The I court in Fain confronted specifically claim Fain’s that the Adult considered because Authority rescinding his parole its chairman had con “improperly yielded political pressure,” “The law, contention is to cluding, as a matter of because the con rejected, stitutional doctrine of of into the separation powers judicial inquiry precludes ‘motivation or mental processes’ which underlie action may by nonjudicial of (Fain 393, agency government. 65 at supra, [Citations.]” 14; fn. also City see Francisco v. 13 Cal.3d County San Cooper of 898, 707, 911-916 534 P.2d to examine whether Cal.Rptr. (refusing [120 403] school board’s of enactment ordinance and resolution was in to coer response v. Los strike); County Angeles of cive influence “illegal” public employee of 721, & fn. 5 726-732 Court 13 Cal.3d (Burroughs) Superior 631, ordered that lower court improperly P.2d (holding Cal.Rptr. 495] reasons regarding of board of members’ conversations discovery supervisors Court v. ordinance); Superior for voting challenged City Fairfield 543, P.2d 14 Cal.3d 772-773 & fn. 776-777 375] members council city (concluding discovery reasoning processes unit for planned in in acting quasi-judicial rejecting application capacity taken, as Here, action the official development permit improper).) conclusions, due regard good evidenced the board’s reasons and shows by cause criteria from whatever influence the mere fact of public opposition apart decisions have had on the integrity decision. Those who question the board seek reform through made other administrative must by body in than engage directed at rather legislation changing procedural safeguards bodies.4 business the decisions of administrative second-guessing 1981) (9th quarrel holding 4I have no with the Cir. or rationale of Sellars v. Procunier There, by majority. F.2d to absolute cited were entitled holding parole that state board officials 1983) immunity rights by prisoners (brought civil actions under 42 U.S.C. § decisions, reasoned, decision-making process connection with court “Just as fear, judges kept protec must be this free from so must that of board officials. Without tion, danger adjudicate there is the same the often might impartially that the decision-maker ” (Id., liability difficult and inconve personal cases come before them. at Fear of however, litigation, nience from markedly public pressure is the more remote different from here, Also, directly work which does not pocketbook. threaten a board official’s no im appointed public, official is not elected or or her so there is position his mediate fear of public reprisal. (3d 1980) by majority, Winsettv. heavily McGinnes Cir. 617 F.2d a case relied on Winsett, distinguishable. prisoner In prison Delaware denied work release status to a officials 999) crime pervasive throughout (p. whose of murder had aroused the state” public outrage “a and whose imminent manifested, “increasingly public opposition work release was met with evident” part, demanding a letter from a and retraction of state senator reconsideration 1000). steps already taken one of (p. prison subsequently toward release A official who vetoed prisoner’s applications gone admitted trial have on work release prisoner would *21 legislative (P. 1002.) pressure.” sustaining prisoner’s procedural but for “intense due In the process challenge majority to denial of Winsett determined applications, his work release the the had “no “lurking public legislative reprisal that board’s fear” of unfavorable and reaction place ... in the under grant deny prisoner exercise of discretion whether to or work release regulatory (Id., provisions” governing program. p. the the at Winsett Although factually many ways, Winsettand the instant are in the board in case similar assimilation, to ground safety did not which were relevant its decision on or other considerations Indeed, justified relying in prisoner’s the release. the court noted that the board would have been for prognosis on certain “relevant . included the the considerations—among which . . [were] safety,” even adjustment, flight, personal inmate’s behavioral the inmate’s risk and the Thus, (617 though F.2d at specified regulations. those considerations were not in the public mere fact of majority objected what the in Winsett to was the board’s sole reliance on the legislative outrage, a situation different from the before us. Moreover, in place did have a convincingly argued public opinion dissent in Winsett to consider legislation requires the bounds of the board’s discretion since Delaware the board (as California) in- community public, from the detriment to the or the inmate and information Weis, (Id., (dis. opn. cluding testimony family pp. of the immediate of the victim. 1014-1015 J.).) The trial court with the disagreed board’s view that which sur- public outrage faced to the just prior 1982 decision to is February rescind date “new information” for (c). Parole Rule purposes Board subdivision court reasoned that the recent cannot be considered new because petition 18,000 similar petition to the containing signatures attention brought board five years ago, apparently taking view that once outrage, public voiced, is after, Or, old news forever of its regardless intensity. changing put it another has way, only one in the entire public opportunity parole process on the board’s impact decision. This flawed fundamentally reasoning ways. two
First, as the clear, court Fain I made the board’s awareness of public hostility toward release of an inmate has “because it reaches such significance pertinent questions whether he . . assimilated into and . society safe, whether he will be personally (Fain outside of 65 Cal. prison.” supra, App.3d near, fn. 14.) As the release date draws the need reassess chances successful assimilation and the of safe release prospect critical, becomes reassessment, undertaken, such if cannot meaningfully be made on the basis of information before. Increased gathered years oppo release, sition to especially from the area into which release is geographic could be planned, of paramount to a reconsideration. importance Similarly, for, to, public support decreased such opposition releases could impor tant. It would be unrealistic to frozen in expect intensity interest is all time as of the date it is first voiced I believe that and considered. when any significant increase or decrease in interest should con be accorded sideration the board as new information which is relevant to the decision whether to let a scheduled parole release date stand.
Second, a mere in the number of tells little about the change signatures assimilation and factors safety just discussed. Meaningful inquiry requires Moreover, at the looking geographic location of those who signed petition. into the limiting inquiry number of even from the area of signatures, pro- release, focuses too much on posed of informa- quantity ignores quality tion case, brought light course In this in- public outcry. example, formation came to the board in the form of correspondence oral testimony, from the itself. The kind of just petition this importance *22 information, , much of which can be of the outcry characterized as part neither made greater nor diminished by length any petition. reasons,
For I must conclude the board con- foregoing properly and, sidered evidence of renewed as new information consis- public outrage tent with Fain information found cause in that Fain’s good rescind release date.5
I would reverse the trial the writ. court’s order and discharge A 14, 1983, for a petition was denied rehearing February appellant’s for a petition Court denied March 1983. hearing by Supreme Grodin, J., Richardson, J., did not therein. was of the participate opinion that the petition should be granted. majority, 5Like the I unnecessary find it to reach post urges Fain’s ex facto contention. Fain ” application “newly outcry board’s developed ‘public doctrine’ to his case runs afoul above, however, prohibition against post ex facto laws. For reasons set forth I have con cluded that the board upon good rescinded Fain’s than public based cause rather se, that, per and I concur in majority’s very In notwithstanding observation recent case of Stanworth, supra,
re upon good cause does Cal.3d mere rescission of based ante, 311-312, (See post maj. opn., pp. amount an ex facto fn. violation.