IN RE: Gerald McDonald ROGERS

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Court of Appeal, Third District, California.

IN RE: Gerald McDonald ROGERS, on Habeas Corpus.

Cr. 10365.

Decided: February 11, 1980

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and Ramon de la Guardia and Thomas R. Yanger, Deputy Attys. Gen., for respondent and appellant. Quin Denvir, State Public Defender, and Mark E. Cutler, Deputy State Public Defender, for petitioner and respondent.

The sole question presented by this appeal is whether the Community Release Board (CRB), in a serious offender hearing under Penal Code section 1170.2, subdivision (b), may consider a prior prison term served for felony convictions which were subsequently found to be constitutionally invalid. As we shall explain, we have concluded that the CRB did not abuse its discretion in considering the prior felony convictions and the resulting prison term served.

In 1976 petitioner was sentenced to state prison for three counts of kidnapping (Pen.Code, s 207), one count of attempted rape (Pen.Code, ss 664, 261, subd. 3), two counts of rape (Pen.Code, s 261, subd. 3), and one count of oral copulation (Pen.Code, s 288a). The information in that case alleged four prior convictions. Two in 1960 were for rape (Pen.Code, s 261, subd. 3), and assault with a deadly weapon (Pen.Code, s 245). The other two in 1971 were for lewd and lascivious conduct (Pen.Code, s 288).

In the 1976 proceeding, the trial court found the two 1971 convictions to be constitutionally invalid; however, the basis of the invalidity is not stated in the minute order of the 1976 case.

After the effective date of the Determinate Sentence Law (DSL), the CRB concluded that petitioner was a serious offender within the meaning of Penal Code section 1170.2, subdivision (b),1 and that a longer term than that which would result from retroactive application of the DSL was appropriate.

At the serious offender hearing, the CRB fixed a term of 13 years. Seven years were imposed for his 1976 convictions, three years for the term served for the 1960 convictions, and an additional three years were imposed for the term served in 1971.

After exhausting his administrative remedies without success, petitioner filed a petition for writ of habeas corpus in the superior court alleging the CRB exceeded its authority by imposing the additional three years for the 1971 convictions which had been found to be constitutionally invalid. He contended in the trial court and here that the 1971 convictions could not be used in any way to increase his sentence. The trial court granted the writ and ordered the CRB to recompute petitioner's term under Penal Code section 1170.2, subdivision (b), and ordered deletion of the three years based upon the 1971 convictions. The CRB appeals that order.

Initially we note that the applicable standard of judicial review of the term-fixing decisions of the CRB in serious offender hearings is whether based upon the entire record the board abused its discretion by acting arbitrarily, capriciously or without information and whether the actual sentence fixed by the board is constitutionally disproportionate to the offense. (In re Greenwood (1978) 87 Cal.App.3d 777, 784, 151 Cal.Rptr. 223.)

As this court has commented, the Legislature has conferred broad discretion upon the CRB in that it “ ‘shall be guided by, but not limited to, the term which reasonably could be imposed on a person who committed a similar offense under similar circumstances on or after July 1, 1977,’ ” in setting a term under section 1170.2, subdivision (b). (Way v. Superior Court (1977) 74 Cal.App.3d 165, 172-173, 141 Cal.Rptr. 383, 388.)

In In re Greenwood, supra, 87 Cal.App.3d at pages 782-783, 151 Cal.Rptr. 223, the court held that in serious offender hearings, the CRB is not bound to a strict application of the statutory sentencing rules (s 1170, subd. (a)(2), s 1170.3), and the California Rules of Court (rules 421, 441) which are binding upon trial courts in passing sentence. Rather, the Greenwood court recognized that under the express language of the statute, the CRB is given discretion to impose a greater term than could have been imposed by the trial court under the DSL. (See also In re Shetterly (1978) 86 Cal.App.3d 889, 894-895, 150 Cal.Rptr. 603.)

Petitioner's principal argument is that under People v. Coffey (1967) 67 Cal.2d 204, 214-215, 60 Cal.Rptr. 457, 430 P.2d 15, a prior conviction subsequently held to be constitutionally invalid may not be used In any way to increase the severity of the punishment for a later offense. He is wrong.

There are two alternative methods by which the constitutional validity of a prior conviction may be challenged. The first is by a motion to set aside a plea of guilty and vacate a prior judgment of conviction, which must be initiated by the defendant in the action and court in which the prior judgment was rendered. The other is by motion to strike the prior convictions from an accusatory pleading in a pending criminal proceeding; if granted, the result is not the equivalent of a determination that the defendant did not in fact suffer the prior judgment of conviction but, rather, merely prevents the constitutionally invalid prior from being used by the court to enhance the punishment imposed in the current proceeding.

The striking of an allegation of prior conviction in an accusatory pleading is not the equivalent of a determination that defendant did not in fact suffer the conviction. The judicial act of striking the allegation is for purposes of sentencing only. The dismissal of such charges does not eliminate the prior conviction.

In the 1976 criminal proceedings, the latter motion was made and granted; the effect of the order merely precluded the trial court from using the 1971 convictions to increase the severity of petitioner's sentence upon his conviction for the 1976 offenses. (Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 711-712, 108 Cal.Rptr. 612; People v. Coffey, supra, 67 Cal.2d at pp. 214-215, 60 Cal.Rptr. 457, 430 P.2d 15.)

However, the CRB is not so limited in serious offender proceedings; the hearing and determination of a prisoner's term under section 1170.2, subdivision (b), does not constitute a resentencing. (In re Shetterly, supra, 86 Cal.App.3d at p. 895, 150 Cal.Rptr. 603; In re Gray (1978) 85 Cal.App.3d 255, 262, 149 Cal.Rptr. 416.) The original sentence “for the term prescribed by law” imposed under the Indeterminate Sentence Law in 1976 remains valid. (People v. Alcala (1977) 74 Cal.App.3d 425, 141 Cal.Rptr. 442; In re Gray, supra, 85 Cal.App.3d at p. 262, 149 Cal.Rptr. 416.) The CRB in such proceeding may enhance the sentence and extend the prisoner's confinement for a period longer than he could receive under the Determinate Sentence Law, but he may not be kept in confinement for a period of time longer than he would have been kept under the Indeterminate Sentence Law. (Pen.Code, s 1170.2, subd. (c); In re Greenwood, supra, 87 Cal.App.3d at p. 784, 151 Cal.Rptr. 223.)

Since the striking of an allegation of a prior conviction as “constitutionally invalid” is not the equivalent of a determination that the defendant did not, in fact, suffer the conviction, the CRB may enhance the serious offender's term of confinement by use of that prior conviction. (In re Greenwood, supra, at p. 784, 151 Cal.Rptr. 223.) The defendant must continue to fulfill the conditions of the sentence imposed upon him as a result of the earlier conviction unless the judgment is vacated in the original action. (Gonzalez, supra, 32 Cal.App.3d at p. 712, fn. 9, 108 Cal.Rptr. 612.

The record in the instant case fails to show that petitioner's 1971 judgments of conviction were vacated or set aside. On the contrary, the record reveals that although petitioner was granted parole from his prison commitment for the 1971 convictions, that parole was revoked in May 1977, and petitioner reconfined in prison for that revocation as well as for his 1976 convictions. Insofar as they form a basis for petitioner's present incarceration, the 1971 convictions are existing valid judgments.

Petitioner also relies upon a series of cases involving defendants charged with violations of Vehicle Code section 23102 (driving under the influence) with alleged prior convictions of the same offense.2 In those cases, a court order striking the prior convictions in pending proceedings was held to be binding on the Department of Motor Vehicles in administering its statutory mandate to suspend or revoke driving privileges upon multiple drunk driving convictions. Those cases are not apposite. The Legislature has by statute granted discretion to the CRB to impose terms for serious offenders greater than that which the last sentencing court could impose under the DSL.

The paramount consideration in setting terms under section 1170.2, subdivision (b), is the protection of the public from “extraordinary crimes of violence.” (In re Greenwood, supra, 87 Cal.App.3d at p. 785, 151 Cal.Rptr. 223.) In a serious offender hearing, “. . . the CRB should impose a term which in its sound discretion it deems necessary to protect the public from repetition of crimes of violence against the person.” (In re Coronado (1978) 87 Cal.App.3d 788, 793, 151 Cal.Rptr. 433, 437.)

From the record, it appears that the CRB not only considered the 1971 convictions, but also the fact that after the petitioner had served a prison term for the 1971 convictions, he was apparently not deterred from thereafter committing similar crimes. The panel reviewed petitioner's cumulative case summary, the sentencing transcript and probation officer's report in one of the 1971 convictions; those materials described in detail his commission of the offenses. The CRB panel observed that prior prison terms were imposed for a pattern of sexual assaults spanning approximately 17 years. The assaults are against both young and old females. The panel also noted that both the 1971 and 1976 sex crimes had been committed while petitioner was on parole.

It is noteworthy that the Legislature has designated violations of Penal Code section 288, the offenses of which petitioner was convicted in 1971, as a “violent felony” for the purpose of sentence enhancement.

The circumstances of petitioner's 1971 convictions demonstrate his propensity to commit violent sex crimes. The fact that petitioner served a prior prison term for those convictions was established by the documents lodged with the CRB panel and were certainly relevant to a determination of a term necessary to protect the public from continued repetition of crimes of violence. The CRB did not abuse its discretion in considering the facts of petitioner's 1971 convictions and the prison term served, for purposes of fixing his term as a serious offender.

The order granting the writ of habeas corpus is reversed.

I dissent.

The majority opinion holds that the CRB may extend the petitioner's term of imprisonment under Penal Code section 1170.2, subdivision (b), from ten to thirteen years on the basis of prior convictions which had been determined by the sentencing court to be constitutionally invalid. The result is reached without discussion of the applicable principles of law and upon reasons so disparate as to make comprehension difficult.

This case is governed by two interrelated principles of law. A constitutionally invalid conviction may not be used by a court or administrative body to alter penal status or enhance punishment. A judicial decision that a conviction is constitutionally invalid may be asserted collaterally as a bar to a contrary administrative determination.

The majority opinion asserts, wholly without support, that the CRB has discretion under the DSL to use a judicially declared invalid conviction to enhance punishment in the absence of a judgment setting aside the conviction for all purposes. I examine this claim below. Preliminarily, I set the factual perspective of the case in a focus sharper than its blurred rendering in the majority opinion.

I

This case comes to us on appeal from an order granting habeas corpus relief. (Pen.Code, s 1506.) The facts are established by the pleadings, consisting of the return and the traverse. (Pen.Code, s 1484; In re Saunders (1970) 2d Cal.3d 1033, 1047-1048, 88 Cal.Rptr. 633, 472 P.2d 921.) The return pled1 and the traverse admitted that at a CRB extended term hearing under Penal Code section 1170.2, subdivision (b), the petitioner's prison term was extended for three years “based upon the Fact of a prior prison term for convictions” of two felonies with knowledge that “the sentencing court had determined that petitioner's convictions . . . were constitutionally invalid . . . .” (Emphasis added.) The record incorporated by the pleading shows that the petitioner raised the bar of the sentencing court's determination.

The “fact of a prior prison term for (a) commitment” is, under the definitional2 and extended term hearing rules3 of the CRB, equivalent to the Fact of a conviction. The record shows that the trial court's ruling was made after a hearing on the merits upon the basis of a violation of a Sixth Amendment right.4

The majority suggest that the CRB may have additionally determined to enhance petitioner's sentence upon the ground of his failure to avoid criminal conduct following the imprisonment for the invalid conviction. The claim is contrary to the facts.

The precise finding made by the CRB, as required by its rules (ante, fn. 3), is as follows: “The prisoner has been committed for prior prison terms as follows:

“. . .

“Penal Code s 288, Lewd & Lascivious Conduct, 2 counts, Case A-169767/A-168439, which is a felony within the meaning of Penal Code s 667.5(a). The fact of this prior prison term is found to be true in this hearing although it was not imposed by the court.

“The term is, therefore, extended by 36 months.”

The CRB's finding shows that the petitioner's term was extended exclusively upon the basis of convictions (i. e., “ ‘(p)rior prison term(s),’ ” (see ante, fn. 2) meeting the terms and standards of Penal Code section 667.5.

The CRB has enhanced a term of imprisonment on the basis of prior convictions pursuant to a statutory scheme which, through the adoption of rules and the incorporation of statutory standards, makes the fact of the convictions a predicate for increased punishment. On the facts of this case the CRB action is barred by settled principles of constitutional law and collateral estoppel.

II

The fact of a prior conviction which is unconstitutional as in violation of a Sixth Amendment right may not be used to enhance punishment. “ ‘We have repeatedly held that prior convictions obtained in violation of Gideon v. Wainwright ((1963)) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, cannot be used for impeachment or any other purposes. (In re Woods ((1966)) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce ((1966)) 64 Cal.2d 11 (48 Cal.Rptr. 694, 409 P.2d 918) . . . ; In re Tucker ((1966)) 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921; People v. Coffey ((1967)) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15; In re Caffey ((1968)) 68 Cal.2d 762 (69 Cal.Rptr. 93, 441 P.2d 933) . . ..) An accused cannot be forced to suffer anew from the earlier deprivation of his Sixth Amendment right. (Burgett v. Texas ((1967)) 389 U.S. 109, 115, (88 S.Ct. 258, 19 L.Ed.2d 319). . . .’ In re Dabney (1969) 71 Cal.2d 1, 6, 76 Cal.Rptr. 636, 638, 452 P.2d 924, 927.)” (In re Terry (1971) 4 Cal.3d 911, 916, 95 Cal.Rptr. 31, 35, 484 P.2d 1375, 1379.) “This would include the enhancement of punishment.” (Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 710, fn. 1, 108 Cal.Rptr. 612, 615.)

The constitutional principle was laid down in Burgett v. Texas (1967) 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319: “To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (citation) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.” The rule is anchored in the very constitutional right that is at stake. It is bolstered by principles of due process of law. (People v. Coffey (1967) 67 Cal.2d 204, 219, 60 Cal.Rptr. 457, 430 P.2d 15.) Coffey applies the rule “to the extent that statutory machinery relating to penal status or severity of sanction is activated by the presence of prior convictions, . . .” (Id. at pp. 214-215, 60 Cal.Rptr., at p. 464, 430 P.2d, at p. 22.)

The majority opinion concedes that an invalid conviction may affect administratively enhanced punishment, but asserts that Coffey “merely prevents the constitutionally invalid prior from being used By the court to enhance the punishment imposed in the current proceeding.” (Emphasis added.) The majority would require that the original conviction be set aside as invalid before binding the CRB. There is no support for the majority's claim. Although Coffey itself concerned a judicial proceeding, it established a procedure for a collateral attack upon the prior conviction for purposes of its use to establish guilt or punishment without the necessity for setting aside the conviction itself. In Coffey that would not have been possible as the conviction was in another jurisdiction.

III

The majority opinion wholly bypasses the principles of res judicata and collateral estopped which are applicable here. It is not necessary to set aside the conviction in order to affect penal consequences arising from the subsequent judicial or administrative use of the conviction. At least where the conviction has been successfully collaterally attacked in the sentencing court (Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 338, 90 Cal.Rptr. 586, 475 P.2d 858) on the merits (Hasson v. Cozens (1970) 1 Cal.3d 576, 578, 83 Cal.Rptr. 161, 463 P.2d 385) the judicial determination may be asserted as a bar, on principles of res judicata and collateral estoppel, to the punitive use of the invalid conviction in an administrative proceeding. (Hasson v. Cozens, supra, 1 Cal.3d at p. 578, 83 Cal.Rptr. 161, 463 P.2d 385; Gonzalez v. Municipal Court, supra, 32 Cal.App.3d at p. 710, 108 Cal.Rptr. 612; Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 526, 145 Cal.Rptr. 636; and see People v. Davis (1979) 94 Cal.App.3d 215, 219, 156 Cal.Rptr. 395; Shackelton v. Department of Motor Vehicles (1975) 46 Cal.App.3d 327, 331, 119 Cal.Rptr. 921; DeRasmo v. Smith, (1971) 15 Cal.App.3d 601, 606-608, 93 Cal.Rptr. 289; Mitchell v. Orr (1969) 268 Cal.App.2d 813, 815-817, 74 Cal.Rptr. 407; De La Vigne v. Dept. of Motor Vehicles (1969) 272 Cal.App.2d 820, 822-825, 77 Cal.Rptr. 675.)

The majority opinion does not labor to distinguish these cases. Rather, it asserts that “(t)he Legislature has by statute granted discretion to the CRB to impose terms for serious offenders greater than that which the last sentencing court could impose under the DSL.” The opinion does not explain upon what basis discretion can be exercised to evade a constitutionally based right or a binding decision of a court of record. The CRB has no discretion to invade a constitutional right. It cannot extend an inmate's sentence on the basis of race, no matter what the discretion. I fail to perceive on what basis discretion can be exercised to require the petitioner to “(suffer) anew from the deprivation of (a constitutional) right.” (Burgett v. Texas, supra, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319; see 5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, ss 409, 410, pp. 3706-3708.)

IV

The majority opinion engages in an unexplained venture into separation of powers, an issue which has no discernible relation to the case. It states that the “determination of a prisoner's term under section 1170.2, subdivision (b), does not constitute a resentencing” and that the CRB may extend the petitioner's sentence beyond that which he would have received under the DSL, for a period no longer than the maximum commitment under the ISL.

The opinion relies on cases (In re Shetterly (1978) 86 Cal.App.3d 889, 895, 150 Cal.Rptr. 603; In re Gray (1978) 85 Cal.App.3d 255, 262, 149 Cal.Rptr. 416) which rejected an attack upon the CRB's discretionary powers as violating the doctrine of separation of powers. The reliance is wholly misplaced here. The collateral estoppel cases do not turn on what the function performed is called but whether a judicially determined fact may be asserted to preclude an increase in punishment within the statutory scheme. If the invalid conviction is sought to be used within statutorily granted discretion it is nonetheless barred. (DeRasmo v. Smith, supra, 15 Cal.App.3d 601, 93 Cal.Rptr. 289.)

As the majority recognizes, Within the statutory scheme here involved the petitioner has been given three real years of increased imprisonment. That reality cannot be blinked by saying that he was not “resentenced.” Nor is petitioner less privileged in claiming collateral estoppel by the fact that his term of imprisonment is less than what he might have gotten under the ISL, for the DSL conferred certain rights upon the petitioner, including the right to be sentenced pursuant to the statutory scheme of Penal Code section 1170.2. “Although a redetermination of an ISL offender's term under the DSL is not a resentencing (citations), the CRB must apply the DSL, as prescribed, to prisoners who committed crimes before July 1, 1977 (citations).” (In re Bray (1979) 97 Cal.App.3d 506, 513, 158 Cal.Rptr. 745, 749.)

The statutory scheme of the DSL, under Penal Code section 1170.2, subdivision (b), has been implemented by the adoption of regulations (see ante, fn. 3) which make the Fact of a prior conviction relevant to the setting of a term of imprisonment. These regulations are as much a part of the statute as the statute itself. Moreover, as applied here, they appear to incorporate the standards and terms of Penal Code section 667.5. Hence the “statutory machinery relating to . . . severity of sanction (has here been) activated . . ..” (People v. Coffey, supra, 67 Cal.2d at pp. 214-215, 60 Cal.Rptr. at p. 464, 430 P.2d at p. 22), and petitioner may assert the judicial determination as a bar to CRB's enhancement of his term.

I would affirm the order granting relief.

FOOTNOTES

1.  Section 1170.2, subdivision (b), provides in pertinent part that if “at least two of the members of the Community Release Board after reviewing the prisoner's file, determine that due to the number of crimes of which the prisoner was convicted, or due to the number of prior convictions suffered by the prisoner, or due to the fact that the prisoner was armed with a deadly weapon when the crime was committed, or used a deadly weapon during the commission of the crime, or inflicted or attempted to inflict great bodily injury on the victim of the crime, the prisoner should serve a term longer than that calculated in subdivision (a), . . . the prisoner shall be entitled to a hearing before a panel consisting of at least two members of the Community Release Board as provided for in Section 3041.5. . . . At such hearing the prisoner shall be entitled to be represented by legal counsel, a release date shall be set, and the prisoner shall be informed in writing of the extraordinary factors specifically considered determinative and on what basis the release date has been calculated. In fixing a term under this section The board shall be guided by, but not limited to, the term which reasonably could be imposed on a person who committed a similar offense under similar circumstances on or after July 1, 1977, and further, The board shall be guided by the following finding and declaration hereby made by the Legislature: that the necessity to protect the public from repetition of extraordinary crimes of violence against the person is the paramount consideration.” (Emphasis added.)

2.  Those cases are Mitchell v. Orr (1969) 268 Cal.App.2d 813, 817, 74 Cal.Rptr. 407; DeLaVigne v. Dept. of Motor Vehicles (1969) 272 Cal.App.2d 820, 824-825, 77 Cal.Rptr. 675; Hasson v. Cozens (1970) 1 Cal.3d 576, 579-580, 83 Cal.Rptr. 161, 463 P.2d 385; Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 338-339, 90 Cal.Rptr. 586, 475 P.2d 858.)

1.  “III. On June 13, 1978, the Community Release Board held a hearing pursuant to Penal Code section 1170.2(b). At that hearing, petitioner's term was set at 13 years. Three years of the 13-year term was based upon the fact of a prior prison term for convictions of two violations of Penal Code section 288, lewd and lascivious conduct, cases A-169767 and A-168439 (Petitioner's Exhibit E).“IV. On September 16, 1976, the sentencing court had determined that petitioner's convictions for the two violations of Penal Code section 288, discussed in Paragraph III above, were constitutionally invalid (Petitioner's Exhibit C). The Community Release Board was aware of this determination on the date of the above described Penal Code section 1170.2(b) hearing (Petitioner's Exhibit E).”

2.  “ ‘Prior prison term’ is a prior felony conviction which resulted in . . . incarceration . . . .” (Cal.Admin.Code, tit. 15, s 2154, subd. (b)(2).)

3.  The CRB rules applicable at the time of the CRB hearing provide in relevant part:“Serious Offender Hearings. (a) General. At this hearing the panel shall determine whether a prisoner should have a release date later than the 1170.2(a) DSL release date as retroactively calculated. If the hearing panel determines the release date should be later, the hearing panel shall set a term under the guidelines set forth in this section. Any legal arguments challenging rules or policies of the board shall be presented under the procedures for public participation described in Chapter 1, Article 4.“(b) Guidelines. (1) General. In establishing the term the hearing panel shall be guided by, but not limited to, the DSL term which reasonably could be imposed on a person who committed a similar crime under similar circumstances on or after July 1, 1977. The primary consideration is the necessity to protect the public from the repetition of such extraordinary crimes of violence against the person. The date set by the panel shall not be later than the primary term discharge date that could have been set under any previous regulations.“(2) DSL Maximum. The term shall ordinarily be set no higher than the DSL maximum. The DSL maximum is the maximum term which could have been imposed by a court had the DSL been in effect when the crime was committed. The DSL maximum includes the imposition of the following: the upper term for the base offense; enhancements for prior prison terms; enhancements for personal use of a deadly or dangerous weapon or firearm; enhancements for being armed with a firearm if the prisoner or another principal was armed with a firearm; enhancements for the infliction of great bodily injury; consecutive sentences. Any enhancement which must be imposed under Penal Code Section 1170.2(a) must also be imposed at the hearing.“(3) Other Enhancements. Additional time for matters which would have resulted in an adjustment under the ISL but which are not included in subdivision (b)(2) may also be added. Such matters may include an attempted infliction of great bodily injury, infliction of great bodily injury in an assault crime, prior prison terms not meeting the requirements of Penal Code Section 667.5 and prior felony convictions. The additional time shall be commensurate with the amount of time which would have been added under the ISL.“(4) Extraordinary Crime of Violence. If the prisoner has been convicted of an extraordinary crime of violence or if good cause has been found to believe that he has committed an extraordinary crime of violence as provided in subdivision (c), and if there is reason to believe that an extraordinary crime of violence will be repeated, the panel may add additional time up to the primary term. An extraordinary crime of violence is one which is listed in Penal Code section 667.5(c) or any other crime in which actual harm was inflicted on the victim through some highly violent act committed by the prisoner. A highly violent act is one in which an extremely serious injury was inflicted, or the injury was inflicted in an unusually brutal manner.“(c) Basis for Findings. The panel may impose any of the terms described in subsection (b) if it is supported by a finding which meets any of the following standards of reliability:“(1) The prisoner was convicted of the crime or the enhancement was pled and proven at trial;“(2) The prisoner was found to have committed the offense or the acts constituting an enhancement at a probation revocation, parole revocation, rescission or disciplinary hearing at which the prisoner had rights which comport with the minimum requirements of due process.“(3) The hearing panel at the serious offender hearing makes a finding that the prisoner committed the offense or the acts constituting the enhancement after affording the prisoner the rights specified in ss 2245-2255 and any relevant witnesses to the offense are requested to be at the hearing after being screened and notified as provided in s 2668. This finding may be made although similar charges or allegations were dismissed or stricken as part of a plea bargain.“. . .” (Cal.Admin.Code, title 15, s 2165.)

4.  The return incorporated by reference petitioner's Exhibit C from the petition for habeas corpus, consisting of the sentencing court's minute order relating to its determination of the unconstitutionality of the prior convictions. The exhibit states that the determination was made outside the presence of the jury at a proceeding attended by counsel for the People and the defendant. It is clear from the record that the sentencing court did not, as the majority opinion suggests, merely strike an allegation of a prior from the accusatory pleading, but made a finding of unconstitutionality on the merits after an adversary proceeding (See Hasson v. Cozens (1970) 1 Cal.3d 576, 580, 83 Cal.Rptr. 161, 463 P.2d 385.) Although the record does not specifically state the ground of unconstitutionality, the procedural context requires that the ground be a violation of a Sixth Amendment right. (Pen.Code, s 1158; People v. Lewis (1977) 74 Cal.App.3d 633, 640.)

EVANS, Associate Justice.

REGAN, Acting P. J., concurs.