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IN RE: Royal RIXNER

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Court of Appeal, Third District, California.

IN RE: Royal RIXNER, on habeas corpus.

Cr. 7354.

Decided: May 23, 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. Two charges, each accompanied by a statement of supporting evidence, were set forth in the report. 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's statement of supporting evidence 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 before a magistrate.

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 a copy of the parole violation report which omitted any statement of supporting evidence.

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 violation 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; as to the second charge, the 1972 finding of guilt was based upon the supporting evidence in that report.

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.

Respondent's return conceded that ‘petitioner should be given a new revocation hearing consistent with the standards laid down in Morrissey . . ..’ At a special meeting on December 28, 1973, the Adult Authority ‘dismissed’ the second parole violation charge (alleged possession of cocaine) and ordered that the first charge be calendared for a new revocation hearing. The first parole violation charge was amended at that meeting to allege (incorrectly) that petitioner's conviction in Los Angeles on November 12, 1971, was for the crime of ‘Transportation’ (Health & Saf. Code, former § 11501)—rather than attempted transportation—of narcotics.3

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), notwithstanding its erroneous allegation that the conviction was for ‘Transportation’ of narcotics; 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 constitutional sufficiency of the procedures employed and the rights accorded at the February 1974 revocation hearing.

CONTENTIONS

The Adult Authority's dismissal in December 1973 of the second parole violation charge (possession of cocaine) has rendered moot petitioner's Morrissey contentions directed to that charge except as they bear on 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 Love (1974), 11 Cal.3d 179, 113 Cal.Rptr. 89, 520 P.2d 713; In re Oglesby (1974), 36 Cal.App.3d 629, 111 Cal.Rptr. 866.)4

Petitioner contends that he should have been accorded a Morrissey in-community pre-revocation hearing on the first charge. However, In re Scott (1973), 32 Cal.App.3d 124, 108 Cal.Rptr. 49, and In re Edge (1973), 33 Cal.App.3d 149, 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, 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, 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 charges 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 prerevocation] 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 drawn by petitioner is, in theory, sound.5 The distinction, however, is not controlling in this case. Petitioner's 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.

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 (1973), 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. Nor is In re Edge, supra, 33 Cal.App.3d 149, 108 Cal.Rptr. 757, applicable to this issue inasmuch as the parolee there was not held to be entitled to a prerevocation hearing.

Accordingly, we hold that petitioner was not prejudiced by the lack of a Morrissey pre-revocation hearing on the first charge,6 and we turn to his arguments concerning the 1972 in-custody revocation hearing on that charge.

Petitioner's contentions that he was not accorded Morrissey rights at the 1972 revocation hearing (i. e., the rights of confrontation and cross-examination and to produce witnesses and mitigating evidence) are not disputed by respondent. 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. In the 1972 revocation proceedings, petitioner was entitled to the full panoply of Morrissey rights as to the second parole violation charge (alleged possession of cocaine); and, as to the first charge based on his new conviction as well as the statement of supporting evidence which accompanied that charge, he was entitled ‘to present evidence at the [1972] revocation hearing that . . . the parole violation report or complaint charging the violation [was] inaccurate or contain[ed] misinformation, and other facts and circumstances in explanation or mitigation’ (In re Edge, supra, 33 Cal.App.3d at p. 157, 108 Cal.Rptr. at p. 763). Thus the 1972 revocation, which was based on both charges, was invalid.

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, respondent has shown no reason whatever for the Adult Authority's 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 toletate in the holding of federal parole revocation hearings. (Marchand v. Director, United States 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. 2593, 33 L.Ed.2d at pp. 489–491, 498.)

When petitioner applied to this court for relief in December 1973, nearly 15 months had elapsed since the revocation of petitioner's parole in September 1972 on the amended charge. There is no claim by those 15 months was required for the further correction of clerical errors in the specification of parole violation charges. In the face of petitioner's diligent attempts to vindicate his Morrissey rights, and in view of respondent's total failure to show good cause (indeed, any cause) for the Adult Authority's neglect during that 15-month period to afford petitioner a revocation hearing which complied with Morrissey, we hold that the delay was unreasonably long.

There must necessarily be a constitutional limit to a 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 February 1974 proceeding. At the time of the new revocation hearing, his petition was pending in this court. Prior to the filing of that petition, a wholly unreasonable period 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 (albeit his 1974 guilty plea was to a parole violation charge of new conviction based on the wrong portion of Health and Safety Code former section 11501—i. e., transportation rather than attempted transportation of narcotics). 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. 2593, 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. 2593, 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 length of delay and other relevant 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. In the inquiry into petitioner's status under Morrissey v. Brewer, two irrelevant factors should be set to one side.

First, we should disregard the clerical errors in the parole revocation papers by which the crime causing the November 1971 conviction was variously labeled as attempted transportation or transportation of narcotics. Both these activities were violations of Health and Safety Code section 11501. There is no question but that petitioner had been convicted of violating section 11501; the variation in nomenclature was inconsequential. Petitioner makes no claim that the Adult Authority would not have revoked for attempted transportation as readily as for actual transportation.

The second false quantity is the second parole violation charge (possession of cocaine) lodged against petitioner. He consistently objected to that charge and attempted to eliminate it. He was successful in that attempt. In December 1973 (about fifteen months after the continued hearing of September 1972 and after we had issued an order to show cause) the Adult Authority finally got around to dismissing that charge. If indeed the Adult Authority's delay in disposing of it fell short of constitutional demands, the answer is that petitioner's present incarceration is not based upon that charge; hence the fifteen-month delay in disposing of the cocaine possession charge is not a factor in considering his entitlement to habeas corpus.

Petitioner's present incarceration is caused by loss of parole based upon the undebated and undebatable fact that in November 1971, while on parole, he suffered a conviction in Los Angeles for violating Health and Safety Code section 11501. After going to jail as a result of that conviction, petitioner was returned to the state prison. An in-prison revocation hearing was held in June 1972 and continued to September 1972 as a result of petitioner's objections. By the latter date the conviction was correctly named, i. e., attempted transportation of narcotics. Defendant admitted that he had violated parole by suffering that conviction, and the Adult Authority then and there revoked his parole. In my view, the September 1972 revocation was valid and fully effective.

There are a number of circumstances which negate petitioner's claim of Morrissey violation: First, no preliminary hearing was necessary, because petitioner had been returned to state prison months before the nonretroactive Morrissey decision was filed. Second, the nature of the alleged violation, a recorded conviction of fresh crime, did not demand pre-revocation hearing. (In re Scott (1973), 32 Cal.App.3d 124, 108 Cal.Rptr. 49; In re Edge (1973), 33 Cal.App.3d 149, 108 Cal.Rptr. 757; see also, In re Law (1973), 10 Cal.3d 21, 27, 513 P.2d 621.) Third, petitioner was not deprived of opportunity to object to the incorrect designation of the conviction and the papers were corrected before the in-prison revocation hearing. Fourth, at the in-prison hearing of September 1972, petitioner admitted the correctness of the charge and admitted the charge itself.

In fastening the Adult Authority with fifteen months' delay, the majority assume that no revocation occurred until December 1973, after our order to show cause was issued. In actual fact, petitioner's parole was validly revoked in September 1972. It is true that in December 1973 and February 1974 the Adult Authority held hearings revolving around the same Los Angeles conviction. These hearings were impelled by our order to show cause, which incorrectly raised a question as to the validity of the proceedings which culminated in petitioner's admission in 1972 that he had suffered the section 11501 conviction. As to that charge, our order to show cause was improvidently issued for, as it ultimately turned out, there had been nothing but an error of nomenclature in describing the section 11501 conviction. The error in nomenclature did not prejudice petitioner and it did not lead the Adult Authority into a revocation which would not otherwise have occurred. Petitioner shows no constitutional injury whatever. I would deny his petition.

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 actions taken by the Authority at its December 28 meeting as involving procedures which first set aside its prior findings of guilt on the two parole violation charges.

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 1760, 36 L.Ed.2d at pp. 662–667 and fn. 6.) Love and Oglesby, however, rejected parolees' claims that they were entitled to the presence of retained counsel at revocation hearings held prior to the Gagnon decision.

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.

6.  It is therefore unnecessary for us to assess the fact that by June 30, 1972, it would have been impossible to afford petitioner the prompt pre-revocation hearing which Morrissey requires (408 U.S. at p. 485, 92 S.Ct. 2593, 33 L.Ed.2d at p. 496).

JANES, Associate Justice.

RICHARDSON, P. J., concurs.

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