IN RE: Orlando ROBERTS on Habeas Corpus.

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Court of Appeal, Second District, Division 4, California.

IN RE: Orlando ROBERTS on Habeas Corpus.

No. B161777.

Decided: December 06, 2002

ORDER

The petition for writ of habeas corpus has been read and considered.

The petition is denied.

Petitioner contends, in the context of parole suitability proceedings, that he is entitled to have a “primary term” fixed under the Indeterminate Sentencing Law prior to being determined suitable for parole because his underlying offense was committed in 1976 and he was sentenced in 1977 when that law was in effect.

 Petitioner is not entitled to the relief requested because in 1976 and 1977 an inmate was not entitled to have a determinate “primary term” set until a determination of parole suitability.   Even if the requested relief were granted it would not result in an earlier determination of parole suitability or an earlier parole release date because an initial primary term would be negated by determinations of unsuitability for parole and the Indeterminate Sentencing Law and Determinate Sentencing Law parole suitability guidelines are functionally identical.  (In re Rodriguez (1975) 14 Cal.3d 639, 646-647, 122 Cal.Rptr. 552, 537 P.2d 384;  People v. Wingo (1975) 14 Cal.3d 169, 182-183, 121 Cal.Rptr. 97, 534 P.2d 1001;  In re Seabock (1983) 140 Cal.App.3d 29, 40-41, 189 Cal.Rptr. 310;  In re Duarte (1983) 143 Cal.App.3d 943, 946-951, 193 Cal.Rptr. 176.)

Having denied the petition on the merits, we turn to address a troublesome procedural matter.

After denying petitioner's habeas corpus petition on the merits, the San Diego Superior Court advised him that the appropriate venue for appellate review lies in our district under authority of In re Sena (2001) 94 Cal.App.4th 836, 115 Cal.Rptr.2d 22.   Despite our disagreement with In re Sena, we determined the petition to spare petitioner from being bounced back and forth between the Second Appellate District and the Fourth Appellate District.

 We believe that the proper venue for habeas corpus review of parole suitability denials lies in the county in which the inmate is housed (or was housed at the time of the parole denial) and in the corresponding appellate district.   We also believe that substantial justification exists for requiring habeas review of such parole determinations to be commenced in the proper venue to promote efficient, consistent handling of such petitions and to discourage the filing of duplicate petitions in various counties in a forum shopping endeavor.

Our two major points of disagreement with In re Sena are (1) its categorization of a habeas corpus challenge to a denial of parole suitability as “a challenge to the length of sentence, i.e., the sentence itself” with proper venue in the county where sentence was imposed (In re Sena, supra, 94 Cal.App.4th at p. 839, 115 Cal.Rptr.2d 22), and (2) its omission to consider that habeas corpus petitions challenging denial of parole suitability might fall within a venue category other than the two categories identified in Griggs v. Superior Court (1976) 16 Cal.3d 341, at 347, 128 Cal.Rptr. 223, 546 P.2d 727 (“challenge ․ to a particular judgment or sentence” and “challenge ․ to conditions of the inmate's confinement”), thus ignoring the statement in Griggs that “There will be, of course, petitions filed in which the relief sought does not fall within either of the above categories.   We do not attempt herein to state a general rule or all-inclusive specific rules which direct the proper procedural disposition in each instance.”  (Ibid.)

The technical points relied upon in In re Sena, supra, 94 Cal.App.4th at page 839, 115 Cal.Rptr.2d 22 (that parole is an integral component of felony sentences, and that “[a] parole decision flows from and relates to the sentence initially imposed” and affects the length of the sentence) do not justify the conclusion that petitions challenging a denial of parole suitability “challenge ․ a particular judgment or sentence” within the contemplation of Griggs (Ibid).  The broad standard set by In re Sena would support the conclusion that severe restrictions upon an inmate's liberty (“conditions of confinement”) due to placement in a high-security prison “flows from and is related to” the sentence initially imposed for a grave offense.   Instead, we read the Griggs discussion of challenges “to a particular judgment or sentence” as referring only to claims that the sentence initially imposed is unlawful or an abuse of sentencing discretion.

We view denials of parole suitability as falling within a venue category other than the two identified in Griggs.   Decisions denying parole suitability have nothing to do with the lawfulness or appropriateness of the underlying sentence or where it was imposed.   Neither do such decisions affect the inmate's “conditions of confinement” in the sense indicated in Griggs, supra, 16 Cal.3d at page 347, 128 Cal.Rptr. 223, 546 P.2d 727.   Rather, denials of parole suitability are exclusively “prison based” determinations made by the Board of Prison Terms concerning the inmate's continued incarceration.   The determinations follow hearings conducted by a parole board panel at the prison where the inmate is confined and are based upon the circumstances of the inmate's offenses, criminal record, prison conduct and readiness for parole, and potential danger to the community if released.  (See Penal Code section 3041;  15 California Code of regulations, sections 2281 and 2402.)   Thus, as with challenges to an inmate's “conditions of confinement,” the proper venue for a petition challenging a denial of parole suitability is in the county in which the inmate is confined and the parole denial occurred.

California Standards of Judicial Administration, section 6.5 (adopted in 1985, but not addressed in In re Sena ) supports our conclusions in two respects.   First, section 6.5 describes the Griggs “challenge ․ to a particular judgment or sentence” venue category as referring to “(1) the validity of judgments or orders of trial courts.”  (Italics added.)   This is consistent with our reading of the Griggs venue category as concerning only the lawfulness of the sentence imposed.   Second, section 6.5 follows Griggs, supra, 16 Cal.3d at page 347, 128 Cal.Rptr. 223, 546 P.2d 727, by identifying a third venue category.   It identifies challenges to “(2) conditions of confinement or the conduct of correctional officials ․” (Italics added.)  Section 6.5's disjunctive juxtaposition of “conditions of confinement” with “conduct by correctional officials” indicates the intention that “conduct by correctional officials” encompasses conduct unrelated to “conditions of confinement” because otherwise “conduct by correctional officials”-which is always the target of a complaint concerning “conditions of confinement”-would be surplusage.   We believe that denials of parole suitability fall within the broad section 6.5 category of “conduct by correctional officials” and that proper venue for challenges thereto lies where such conduct primarily occurred.

In the present matter, petitioner properly first obtained habeas corpus review on the merits in San Diego Superior Court, as he was confined in San Diego County when the parole decision was made and when he filed the petition.   It would thus have been more appropriate for the Court of Appeal in the Fourth Appellate District, Division One, to have reviewed this petition.  (See Government Code section 69100;  Penal Code section 1508, subdivision (b);  People v. Garrett (1998) 67 Cal.App.4th 1419, 1423, 79 Cal.Rptr.2d 803.)

FOOTNOTES

FOOTNOTE.  

THE COURT.* FN* EPSTEIN, Acting P.J., HASTINGS, J., CURRY, J.