IN RE: Royal RIXNER

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Court of Appeal, Third District, California.

IN RE: Royal RIXNER, on Habeas Corpus.

Cr. 7354.

Decided: April 10, 1974

David M. Blackman, Sacramento, for petitioner. Evelle J. Younger, Atty. Gen., by Deborah A. King, Deputy Atty. Gen., Sacramento, for respondent.

Petitioner, reimprisoned on charges of parole violation, seeks a writ of habeas corpus on the ground that the revocation of his parole by the Adult Authority on September 13, 1972, did not conform to the requirements set forth in Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and that a proper revocation hearing was thereafter unreasonably delayed.

FACTS

The controlling facts alleged in the petition, return, and replication are undisputed.

Petitioner was paroled on June 5, 1969. On November 12, 1971, the Superior Court of Los Angeles County found petitioner guilty of the crime of attempted transportation of narcotics (Health & Saf. Code, former § 11501). On January 14, 1972, imposition of sentence was suspended and petitioner was granted four years probation, the first year to be served in the county jail.

On February 17, 1972, petitioner's parole officer submitted a parole violation report to the Adult Authority. The first charge specified therein—that petitioner had violated Condition 11 of the written conditions of his parole1 —was based on his new conviction of November 12, 1971, but erroneously described that conviction as being for the crime of possession of heroin for sale. The report also contained a second parole violation charge, which alleged that petitioner had violated Condition 62 of the conditions of his parole ‘by his possession of the dangerous drug cocaine’ in Los Angeles on October 7, 1971. As to the second parole violation charge, the report alleged that a criminal charge was made but dropped; nothing before us indicates that the latter criminal charge was inquired into at a preliminary examination.

On March 10, 1972, the Adult Authority suspended petitioner's parole and ordered him returned to prison. On May 2, 1972, he was returned to the prison system at the Reception Guidance Center, Chino. Subsequently, he was transferred to the California Conservation Center at Susanville where, on June 7, 1972, he received an abbreviated copy of the parole violation charges.

On June 30, 1972, one day after the Morrissey decision was filed, petitioner was accorded an in-prison revocation hearing, upon notice, at Iron Mine Camp No. 7 in the Susanville area. At that time he denied both charges, objected to the accuracy of the parole violation report, and requested that he be represented by retained counsel at the revocation hearing. The hearing was continued in order for the Adult Authority to obtain correct information.

On September 13, 1972, the hearing resumed at the California Conservation Center, Susanville. Petitioner protested the hearing as being unconstitutional without the presence of counsel and without the opportunity to confront and cross-examine adverse witnesses and to present witnesses and mitigating evidence in his own behalf. The first parole charge was amended at the hearing to correctly allege that petitioner's new (November 1971) conviction was ‘for the crime of attempting to transport narcotics.’ Petitioner pled guilty to the amended first charge (the new conviction) and pled not guilty to the second charge (alleged possession of cocaine). He was found guilty of both counts and his parole was revoked that same day, September 13. Over a year later—in October 1973—petitioner for the first time was given a copy of the complete report submitted by his parole officer on February 17, 1972.

Commencing in January 1973, and continuing throughout that year, petitioner made repeated unsuccessful attempts in the state and federal courts to obtain a hearing on the alleged denial of his Morrissey rights. The instant petition was filed in this court on December 10, 1973.

At a special meeting on December 28, 1973, the Adult Authority ‘dismissed’ the second parole violation charge (alleged possession of cocaine). Although the parties make no point of the matter, the minutes of the special meeting (a copy of which is attached to respondent's return) indicate that the Adult Authority's finding that petitioner was guilty of the first parole violation charge was amended at the meeting to reflect a finding that petitioner's conviction in Los Angeles on November 12, 1971, was ‘for the Crime of Transportation [rather than attempted transportation] of Narcotics . . ..’ Be that as it may, respondent's return conceded that ‘petitioner should be given a new revocation hearing consistent with the standards laid down in Morrissey . . ..’ The return further stated that (on the Adult Authority's own initiative) petitioner had been scheduled for a new revocation hearing on the first charge.

Upon the filing of the petition in this court, we issued an order to show cause. On February 19, 1974, six days prior to oral argument on the show cause order, the new in-prison revocation hearing was held. At that hearing petitioner pled guilty to the amended first charge (the new conviction), his parole was again revoked, and he was placed on the November 1974 calendar for further review by the Adult Authority. Petitioner does not attack the employed and the rights accorded at the February 1974 revocation hearing.

CONTENTIONS

The Adult Authority's ‘dismissal'3 in December 1973 of the second parole violation charge (possession of cocaine) has rendered moot petitioner's Morrissey contentions directed to that charge. We therefore discuss only his Morrissey arguments concerning the first parole violation charge (the new conviction in the Los Angeles Superior Court).

Preliminarily, however, we note the lack of merit in petitioner's claim that he was entitled to the presence of retained counsel at the proceedings which culminated in the revocation of his parole on September 13, 1972. Since his parole was revoked prior to May 14, 1973 (the date Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, was decided), petitioner had no right to the presence of his own private counsel in the 1972 revocation hearings. (In re Oglesby (1974) 36 Cal.App.3d 629, 111 Cal.Rptr. constitutional sufficiency of the procedures 866.4

Petitioner contends that he should have been accorded a Morrissey in-community pre-revocation hearing on the first charge. ‘[A]ll the requirements of Morrissey, including the holding of a preliminary [i. e., pre-revocation] hearing, must be complied with in any case in which the in-custody parole revocation hearing was not completed as of June 29, 1972.’ (In re Edge (1973) 33 Cal.App.3d 149, 156, 108 Cal.Rptr. 757, 762; cf., In re Castaneda (1973) 34 Cal.App.3d 825, 831–833, 110 Cal.Rptr. 385.)

However, In re Scott (1973) 32 Cal.App.3d 124, 108 Cal.Rptr. 49, and In re Edge, supra, 33 Cal.App.3d at page 158, 108 Cal.Rptr. 757, both hold that no Morrissey pre-revocation hearing is required if the parolee was convicted of a crime which is the basis of the revocation proceedings. In this respect, implicit support for Scott and Edge is found in In re Law (1973) 10 Cal.3d 21, at page 27, 109 Cal.Rptr. 573, at page 577, 513 P.2d 621, at page 625, where the state Supreme Court said, ‘It is thus manifest that where the conduct which constitutes a prima facie violation of parole is also independently charged as a new felony the procedures afforded through the holding of a [magistrate's] preliminary hearing are inclusive of or may be made to conform to the procedures mandated in Morrissey.’

Petitioner nonetheless maintains that there is a ‘crucial distinction’ between the facts in this case and those in Scott and Edge (a distinction which, if controlling, would be equally applicable to In re Law, supra, 10 Cal.3d at page 27, 109 Cal.Rptr. 573, 513 P.2d 621). Petitioner argues that ‘the underlying assumption in [Scott and Edge] had to have been that the parole revocation charges were based upon factual accuracy.’ He further asserts: ‘In the present case, the revocation hearing initially conducted on June 30, 1972, and postponed until September, 1972, was based upon inaccurate factual charge which resulted in petitioner's return to prison in February, 1972. [¶] It appears that the fact that the original parole revocation violation report was inaccurate is exactly a basic reason for granting a preliminary [i. e., in-community pre-revocation] hearing in the first place. . . . [¶] Had such a hearing been conducted originally, petitioner would have been able to contest any factual inaccuracy and would have had a fair evaluation based upon actual facts.’

Petitioner's argument continues: ‘Parole violation charges by parole supervisors are not flawless and do not always accurately set forth the relevant facts, as occurred in the present case. [¶] . . . A parolee, even with an abstract of judgment[,] must be able to show he was not the person convicted, the offense was not a violation of his parole conditions, and/or the [parole violation] charge alleging conviction is inaccurate.’ (Original emphasis.)

We agree that the distinction by petitioner is, in theory, sound. It is a recapitulation of the views expressed by this court in In re La Croix (1973) 108 Cal.Rptr. 93, at page 97.5 The state Supreme Court granted a hearing in La Croix but has not yet filed its decision therein.

La Croix, however, is distinguishable because there no pre-revocation hearing had been held by the time the revocation hearing was conducted seven months after Morrissey was filed. In La Croix, it was clear that by October 24, 1972 (approximately four months after Morrissey), the Adult Authority had formulated procedures to afford Morrissey preliminary hearings. (108 Cal.Rptr. at p. 100.)

Here, in contrast, to La Croix, the first revocation hearing commenced on June 30, 1972, one day subsequent to the decision in Morrissey. Petitioner challenged the accuracy of the parole violation report on that occasion, and the hearing was continued until September 13, 1972, so that the accuracy of the first parole violation charge could be ascertained. The continuance of 2 1/2 months, although somewhat long for such a purpose, cannot be said to have been unreasonable as a matter of law.

More importantly, petitioner was able at the June 1972 revocation hearing to accomplish everything (by way of challenging the accuracy of the first charge) which he could have accomplished at a pre-revocation hearing, and he was able to do so at a much earlier time than he could have hoped for with the Morrissey pre-revocation procedure. The Adult Authority could not reasonably be expected to have formulated procedures for Morrissey pre-revocation hearings by June 30, 1972 (a date upon which even most, if not all, California courts did not have available a copy of the Morrissey opinion). Although Morrissey declares that its procedural demands ‘are applicable to future revocations of parole’ (408 U.S. at p. 490, 92 S.Ct. at p. 2604, 33 L.Ed.2d at p. 499), the question of whether Morrissey violations have occurred requires that Morrissey's language be construed in the light of what the United States Supreme Court could have reasonably intended.

The fact that petitioner was able to challenge the first parole violation charge one day subsequent to Morrissey distinguishes this case from our decision in In re Castaneda, supra, 34 Cal.App.3d 825, 110 Cal.Rptr. 385, where the revocation hearing (which had not been preceded by a prerevocation hearing) was not held until October 10, 1972, and where the Attorney General conceded that the Adult Authority ‘had geared up to implement the Morrissey decision during the last week in July, approximately 30 days after the date of the Morrissey decision . . ..’ (34 Cal.App.3d at p. 832, 110 Cal.Rptr. at p. 389.)

Accordingly, we reject petitioner's contention that he was entitled to a Morrissey pre-revocation hearing on the first charge, and we turn to his arguments concerning the 1972 in-custody revocation hearing on that charge.

Petitioner's contentions that he was denied his Morrissey rights at the 1972 revocation hearing (i. e., lack of sufficient advance notice, and denial of his rights of confrontation and cross-examination and to produce witnesses and mitigating evidence) are uncontroverted by respondent and have been tacitly conceded by the Adult Authority's rescheduling of what the return described as ‘a new revocation hearing consistent with the standards laid down in Morrissey. . . .’ The apparent theory underlying the Adult Authority's grant of a new revocation hearing in 1974 is that petitioner's 1972 guilty plea to the first parole violation charge was vitiated by the prior denial to him of Morrissey rights applicable to revocation hearings. The soundness of such a theory is manifest.

Although petitioner's replication indicates submission by him to the concept of a new revocation hearing, the replication also urges that he be reinstated to parole on the ground that, as is the fact, the Adult Authority has shown no reason whatever for its lack of compliance with Morrissey's requirement that the revocation hearing prescribed by that case ‘must be tendered within a reasonable time after the parolee is taken into custody’ (408 U.S. at p. 488, 92 S.Ct. at p. 2604, 33 L.Ed.2d at p. 498).

Prior to Morrissey's elevation of the subject matter to one of constitutional dimension, three months was roughly the maximum delay that the federal courts would tolerate in the holding of federal parole revocation hearings. (Marchand v. Director, U. S. Probation Office (1st Cir. 1970) 421 F.2d 331, 335, fn. 5.) For example, in United States v. Kenton (2d Cir. 1961) 287 F.2d 534, at page 536, the Court of Appeals expressed the view that ‘[n]o argument of administrative convenience can justify holding a parolee in custody for almost 4 months before granting him a statutory hearing on the issue of violation.’ In Morrissey the revocation hearing for each parolee there involved was apparently held within two months after his arrest for parole violation, a lapse of time which the Supreme Court stated would meet its requirement that the revocation hearing be tendered within a reasonable time. (408 U.S. at pp. 472–476, 488, 92 S.Ct. at pp. 2596–2598, 2604, 33 L.Ed. 2d at pp. 489–491, 498.

When petitioner applied to this court for relief in December 1973, over 17 months had passed since Morrissey was decided. Nearly 15 months had elapsed since the revocation of petitioner's parole in September 1972 on the amended charge. In the face of petitioner's diligent attempts to vindicate his Morrissey rights, and in view of the Adult Authority's total failure to show good cause (indeed, any cause) for its delay from September 1972 until February 1974 in affording petitioner a revocation hearing which presumably complied with Morrissey, we hold that the delay was unreasonably long.

There must necessarily be a constitutional limit to reviewing court's authority to countenance such belated measures. (Compare, In re Castaneda, supra, 34 Cal.App.3d at p. 833, 110 Cal.Rptr. 385; In re Edge, supra, 33 Cal.App.3d at p. 159, 108 Cal.Rptr. 757.) We reach this conclusion notwithstanding petitioner's plea of guilty at the 1974 proceeding. At the time of the new revocation hearing, his petition was pending in this court. When that petition was filed, a wholly unreasonable period of time had already elapsed without the holding of a proper revocation hearing. When the Adult Authority finally determined to hold the 1974 hearing, petitioner could not be expected to falsify the fact of his new conviction. Although Morrissey indicated that the parolees there would not be entitled to its safeguards if the parolees had at their revocation hearings admitted the charges made (408 U.S. at pp. 477, 490, 92 S.Ct. at pp. 2598, 2605, 33 L.Ed.2d at pp. 492, 499), Morrissey contemplated revocation hearings held within a reasonable period of time (408 U.S. at pp. 472–476, 488, 92 S.Ct. at pp. 2596–2598, 2604, 33 L.Ed.2d at pp. 489–491, 498).

Morrissey's requirement of a reasonably prompt revocation hearing (one conforming to its standards) would be meaningless if, regardless of the circumstances, the Adult Authority were only required to redress prior Morrissey violations by holding proper revocation hearings—no matter how late in time.

The writ is granted. Petitioner is ordered released from prison and restored to parole upon the same conditions of parole which were imposed when he was paroled on June 5, 1969, or upon such other conditions as the Adult Authority may impose for lawful cause.

I dissent. The Adult Authority's proceedings to revoke petitioner's parole were featured by a parade of clerical errors and a series of unexplained delays. The point of my disagreement is that the subject matter of delay was the correction of clerical errors, not the fulfillment of petitioner's constitutional rights. In June 1972 the papers before the Adult Authority erroneously designated petitioner's new conviction as one for possession of heroin for sale. In response to petitioner's objection, the hearing was continued. At the September 1972 hearing the Adult Authority had an accurate designation of the offense and revoked petitioner's parole for his new conviction of attempting to transport narcotics. Fifteen months later, in December 1973, the Adult Authority once more was led into clerical error, mistakenly identifying the offense as transportation of narcotics. Three months later, in February 1974, the new mistake was corrected and the offense was again designated as attempted transportation of narcotics. Petitioner pleaded guilty to the charge as correctly denominated.

I am unable to identify any constitutional injury in this delayed correction of papers. At no time was petitioner misled. There is not the slightest claim that the mistake in nomenclature led the Adult Authority into a revocation which would not otherwise have occurred. It is justifiable to assume that the Adult Authority would have revoked for attempted transportation. The paper error was harmless error. This decision may improve the quality of the paper work by the Adult Authority staff. It redresses no palpable constitutional injury to petitioner, for none occurred.

FOOTNOTES

1.  Condition 11 required petitioner ‘to obey all municipal, county, state, and federal laws, and ordinances.’

2.  Condition 6 prohibited the unlawful possession, use, or trafficking of dangerous, hypnotic, or narcotic drugs.

3.  We construe the dismissal as being a procedure which first set aside the Adult Authority's finding of guilt on the second charge.

4.  Gagnon held that under certain circumstances, to be decided on a case-by-case basis, indigent probationers and parolees are entitled to appointed counsel at revocation proceedings. The federal Supreme Court expressly declined in Gagnon to decide ‘whether a probationer or parolee has a right to be represented at a revocation hearing by retained counsel in situations other than those where the State would be obliged to furnish counsel for an indigent.’ (411 U.S. at pp. 783–791 and fn. 6, 93 S.Ct. at p. 1760, 36 L.Ed.2d at pp. 662–667 and fn. 6.) In Oglesby, however, we rejected a parolee's claim that he was entitled to the presence of his own private counsel.

5.  As we see it, what Scott and Edge—even In re Law—fail to recognize is that, in a parole revocation case involving a new conviction, the accusatory pleading is the parole officer's specification of charges—not the criminal complaint, information, or indictment which led to the new conviction, nor the abstract of judgment thereon.

JANES, Associate Justice.

RICHARDSON, P. J., concurs.

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