IN RE: Nathaniel DAVIS On Habeas Corpus.

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Court of Appeal, Third District, California.

IN RE: Nathaniel DAVIS On Habeas Corpus.

Cr. 11228.

Decided: January 18, 1982

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Karen Ziskind, Deputy Attys. Gen., for appellant. Robert N. Chargin, Public Defender of San Joaquin County, David Wellenbrock, Deputy Public Defender, for respondent.

The People appeal from a trial court order 1 granting Nathaniel Davis' petition for writ of habeas corpus.   Davis, a life term prisoner, asserted successfully that the use of parole guidelines adopted subsequent to his commitment offense violated the prohibition against ex post facto laws and denied him equal protection.

Davis was sentenced to a term of life in state prison upon conviction of first degree murder and first degree robbery.   On October 18, 1978, he had a parole hearing at which his suitability for parole was evaluated in accordance with guidelines in California Administrative Code, title 15, section 2281;  he was found unsuitable for parole.   On October 1, 1979, he had a second hearing and was determined suitable and given a term of 13 years for the base offense and three years for the robbery with 11 months' post-conviction conduct credits.

On December 10, 1979, the Community Release Board Review Committee ordered a rehearing de novo on the ground the original term had been set too low because factors which were not mitigating circumstances were improperly considered.

At the rehearing, Davis was again found suitable for parole, but the base term was set at 16 years (the middle range), plus three years for robbery, less 12 months of credit.2

The guidelines by which Davis' parole date was calculated were adopted and made part of title 15 of the Administrative Code on July 21, 1978.   He asserted in the trial court and before us that his term should have been calculated according to guidelines contained in former title 15 and in effect from June 11, 1976, until adoption of the current rules.

In its order granting the petition for writ of habeas corpus the court found:  (1) petitioner did not receive a parole date until after the Determinate Sentence Law (DSL) took effect on July 1, 1977;  (2) the current guidelines are more onerous than the 1976 guidelines;  therefore, and (3) application of the current guidelines to Davis violates the prohibition against ex post facto laws.

The court also determined Davis had been denied equal protection because he is similarly situated to other life prisoners whose parole dates were set under indeterminate sentence law rules.

The court ordered that Davis be given a new life parole hearing under the 1976 guidelines.

I

Ex Post Facto

 “In general, ‘any law which was passed after the commission of the offense for which the party is being tried is an ex post facto law, when it inflicts a greater punishment than the law annexed to the crime at the time it was committed [citations];  or which alters the situation of the accused to his disadvantage ․’  (Ex parte Medley, Petitioner, 134 U.S. 160, 171 [10 S.Ct. 384, 387, 33 L.Ed. 835].)”  (People v. Ward (1958) 50 Cal.2d 702, 707, 328 P.2d 777.)

Annexed to the Crime.

The 1976 regulations were not the law annexed to the crime at the time the crime was committed in 1969.   We cannot conclude the pertinent law annexed to the crime at the time it was committed was less onerous than the current regulations.

Before the regulations of former title 15 took effect in 1976, the Adult Authority (predecessor in name to the Board of Prison Terms) exercised extremely broad discretion in making parole decisions.  (See In re Sturm (1974) 11 Cal.3d 258, 262, 113 Cal.Rptr. 361, 521 P.2d 97.)

The criteria used in the decision making process during the era of ISL has been described as follows:  “The Legislature has given no guidance to the Adult Authority in the way of criteria for decision making ․”

“Neither has the Adult Authority developed a formal set of criteria for the fixing of sentences or the granting or denial of parole.   Chairman Kerr presented a list of ‘factors most often considered’ as to the parole decision in testimony before a subcommittee of the House Committee on the Judiciary on October 25, 1971:

“1. Details of current commitment offense.3

“2. Extent and nature of criminal history and/or behavior pattern.

“3. Probation officer's presentence report and subject's attitude toward offense.

“4. Views of trial judge and district attorney.

“5. Views of defense counsel and any interested parties.

“6. Social and psychological history.

“7. Time served on current commitment offense.

“8. Response to institutional program in terms of participation and accomplishments.

“9. Present attitude toward offense and future.

“10. Insight into personal and family problems.

“11. Psychiatric evaluations (including prognosis) when required by law or Board order.

“12. Nature and degree of threat to public safety.

“13. Plans and preparation for release on parole, including job offers, reasonable employment opportunities, family support, and living arrangements.

“He defended the failure of the Adult Authority to adopt and promulgate more detailed, formal criteria, asserting that new factors are added based upon ongoing research and that factors considered necessarily vary with each case.

“A Report of the Assembly Committee on Criminal Procedure, highly critical of the lack of standards guiding the parole decision process, asserted that the time spent in prison, ‘seems to depend on three factors':

“1. The values and feelings of individual parole board members.

“2. The mood of the public.

“3. Institution population pressures.”4

“Absence of formal criteria together with lack of written reasons for decisions and the unilateral nature of most decisions result in a completely discretionary and therefore possibly arbitrary decision process.”  (Comment, The California Adult Authority—Administrative Sentencing and the Parole Decision as a Problem in Administrative Discretion (1972) 5 U.C.Davis L.Rev. 360, 373–375.)

The article concluded, “The Adult Authority exercises tremendous power in fixing sentences and deciding on paroles.   It presently does so with almost unlimited discretion.   Its case load is heavy and the hearings brief.   In practice, the decision on which the liberty of the prisoner turns is made unilaterally by one man who is not guided by formal criteria and who is not legally required to justify his decision.”  (Id. at pp. 381–382.)

Clearly, the law annexed to the crime at the time of its commission by Davis permitted the Adult Authority to exercise abundant discretion in each individual case.

Davis contends the onerous effect of the current guidelines is implicit in the “profound policy shift” which occurred when the DSL replaced the Indeterminate Sentencing Law [ISL], and he emphasizes that while the penological goal under the ISL was reformation of the offender (In re Minnis (1972) 7 Cal.3d 639, 644, 102 Cal.Rptr. 749, 498 P.2d 997), under the DSL the stated purpose of imprisonment is punishment.  (Pen.Code, § 1170, subd. (a)(1).)   Thus, he asserts the focus of the parole inquiry under DSL is more concerned with the nature of the crime itself than with the prisoner's conduct in prison.

While there is merit to the contention the current guidelines reflect a shift away from the policy of the ISL, which was in effect at the time of the commitment offense,5 Davis cannot clearly demonstrate that exercise of broad discretion under applicable ISL standards annexed to the crime at the time it was committed necessarily would have produced a result less onerous than that which he may obtain under current regulations.   It is precisely the nature of the ISL which makes it impossible to predict with any certainty, in any specific case how the discretion of the parole board would have been exercised.

Moreover, under the ISL a prisoner was entitled to no particular release date earlier than expiration of his maximum term, which in Davis' case is life.

“In this state the parole power is vested in the Adult Authority.   (Pen.Code, §§ 5077, 3040.)   While a prisoner eligible for parole has the right to apply therefor and to have his application duly considered, he has no right to a parole at any fixed time, or at all;  the decision to grant or deny parole is committed entirely to the judgment and discretion of the Adult Authority.  (Roberts v. Duffy (1914) 167 Cal. 629, 640–641 [140 P. 260];  People v. Ray (1960) 181 Cal.App.2d 64, 69 [5 Cal.Rptr. 113].)  ‘In determining whether the privilege of parole shall be granted a prisoner, that authority is not guided solely by the good conduct of the prisoner while incarcerated.   The nature of his offense, his age, his prior associations, his habits, inclinations and traits of character, the probability of his reformation and the interests of public security are all taken into consideration.’  (People v. Denne (1956) 141 Cal.App.2d 499, 507 [297 P.2d 451], and cases cited.)”  (In re Schoengarth (1967) 66 Cal.2d 295, 300, 57 Cal.Rptr. 600, 425 P.2d 200, emphasis added.)

“Parole is considered to be a matter of grace, a privilege and not a right, and is committed entirely to the discretion of the Adult Authority.”  (In re Tucker (1971) 5 Cal.3d 171, 178, 95 Cal.Rptr. 761, 486 P.2d 657.   See, People v. Ray, supra, 181 Cal.App.2d 64, 69, 5 Cal.Rptr. 113, cert. den. 366 U.S. 937, 81 S.Ct. 1662, 6 L.Ed.2d 848;  Haines v. Castle (1955) 226 F.2d 591, 594.)   Since Davis was not entitled to have the Adult Authority exercise its discretion in a specific way, and since he cannot demonstrate how such discretion would have been exercised in his case, we may not presume the current guidelines would produce a more onerous result.

Section 2292, subdivision (c), of current title 15 (Cal.Admin.Code) provides that for prisoners whose parole release date was set prior to July 1, 1977, the hearing panel shall proceed as if no release date previously had been set.   If a new parole release date is set as provided under the current regulations the controlling parole date is that which is earliest.   Were it otherwise, possible ex post facto violations could result.  (Cf. Weaver v. Graham (1981) 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17;  Rodriguez v. United States Parole Com'n (1979) 594 F.2d 170.)   However, Davis' situation is critically different from that of prisoners who received a specific parole date under previous law.   As to the latter group it can be determined with certainty whether or not the current regulations produce a result more onerous than the former law.   With respect to Davis and those similarly situated prisoners, no previous parole date was set and it is therefore impossible to know whether, as the result of the board's exercise of its discretion, an earlier or later parole date would have been set in each specific instance.

 Further, the parole rules are modes of procedure within the meaning of Dobbert v. Florida (1977) 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344, and People v. Ward (1958) 50 Cal.2d 702, 707, 328 P.2d 777, a change in which does not violate the prohibition against ex post facto laws unless it operates to actually deprive a person of a right to which he had become entitled.   We are satisfied application of the current guidelines to Davis will not deprive him of any such right enjoyed at the time he committed the offense for which he is imprisoned.

This is not a situation where a precise date, applicable to the prisoner by a particular law, has been extended by retroactive change in that law.  (See Lindsey v. Washington (1937) 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182;  prisoner's possible minimum term extended;  Weaver v. Graham, supra, 450 U.S. 24, 25, 101 S.Ct. 960, 962, 67 L.Ed.2d 17, 21 [enactment of a new statute modifying a mechanical formula for nondiscretionary calculation of a prisoner's “gain time” to the calculable disadvantage of the prisoner];  In re Thomson (1980) 104 Cal.App.3d 950, 953–954, 164 Cal.Rptr. 99.  [retroactive application of amendment to Pen.Code, § 3000, subd. (b), extending one-year maximum to three-year maximum was ex post facto because precise term previously had been calculated].)

We conclude the Board may exercise its discretion pursuant to current guidelines without running counter to the prohibition against ex post facto laws, because:  (1) there is no basis for the claim the result would be more onerous than application of the law annexed to the crime at the time it was committed, and under ISL a life prisoner was not entitled to a parole date at a fixed time;  and (2) the current guidelines represent merely a procedural change of the way in which the Board exercises its discretion.

II

Equal Protection

Davis asserts he is similarly situated to all other life prisoners convicted under the ISL of first degree murder.   Within that identifiable class are two groups:  one group of life prisoners who received parole dates pursuant to the standards in effect under the ISL (hereafter referred to as “Group 1”);  and, another group of life prisoners who have or will receive parole dates exclusively under DSL standards (hereafter referred to as “Group 2”).

Section 2292 (Cal.Admin.Code, tit. 15) requires that all life prisoners have parole release dates established pursuant to the current regulations.   It permits each member of Group 1 to retain his prior release date and to be released on the earlier of the two dates.   Accordingly, prisoners in Group 1 are seemingly in an advantageous position.   To the extent the two sets of criteria differ in focus, presumably some prisoners would obtain an earlier date under the prior guidelines, others would obtain an earlier date under the current regulations, and some might receive approximately the same date under either set of criteria.

Section 2292 does not deprive Group 2 prisoners of that to which they are otherwise legally or constitutionally entitled.6  It addresses the specific feature of distinction between the two groups.   Doubtless, the drafters of that regulation attempted to avoid potential ex post facto violations by permitting each member of Group 1 to retain his previously established release date.

The initial step in an equal protection analysis is to determine whether the classification affects two or more similarly situated groups in an unequal manner.  (In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549;  In re Roger S. (1977) 19 Cal.3d 921, 934, 141 Cal.Rptr. 298, 569 P.2d 1286.)   We conclude the two groups are not similarly situated for purposes of this equal protection analysis;  the crucial feature of distinction is Group 1's previously established release date.   The scope of dissimilar treatment is precisely limited to the extent of the actual dissimilarity between the groups, and is functionally and reasonably calculated to address the problem created by the dissimilarity, while simultaneously effectuating the legislative goal of promoting uniformity of sentences.  (Pen.Code, §§ 1170, subd. (a)(1), and 3065;  Way v. Superior Court (1977) 74 Cal.App.3d 165, 169, 141 Cal.Rptr. 383.)

Respondent directs our attention to In re Kapperman (1974) 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657.  Kapperman concerns a provision of section 2900.5 of the Penal Code which limited application of presentence custody credits to persons delivered into custody of the Director of Corrections on or after March 4, 1972, the effective date of that section.   The Supreme Court concluded the People failed to demonstrate the exclusion was “reasonably related to a legitimate public purpose.”

 The instant case is clearly distinguishable.   The regulations at issue here are not designed to confer a specific benefit upon a particular group to the exclusion of another.   Rather, the pertinent regulations set forth guidelines applicable to all prisoners serving life terms.   The regulations are designed in part to promote greater fairness by minimizing unjustified disparities in prison terms, relative to specified criteria.   As it must, section 2292 recognizes that those life prisoners whose release dates were previously established are entitled to retain their respective dates.7  Accordingly, we find no denial of equal protection.

Assuming, arguendo, as did the court in In re Henson (1981) 123 Cal.App.3d 518, 176 Cal.Rptr. 693, that all life prisoners sentenced under ISL comprise one class of similarly situated persons, we do not find strict scrutiny is the applicable standard.   In Henson, supra, the court determined that section 2292, to the extent that it denies a life prisoner with no parole release date under ISL guidelines prior to July 1, 1977 the benefit of a hearing under those regulations and a release on the earlier date, is a denial of equal protection.   This finding was premised on the holding that all members of the life prisoner class have an interest in being free from incarceration as early as possible and that such interest is a “fundamental interest.”  (People v. Olivas (1976) 17 Cal.3d 236, 245, 251, 131 Cal.Rptr. 55, 551 P.2d 375.)   As such, the classification was subject to strict scrutiny, placing in the state the burden of establishing a compelling state interest.  (In re Henson, supra, 123 Cal.App.3d at pp. 521–522, 176 Cal.Rptr. 693.)   We have already determined that the two groups are not similarly situated and perceive this case to be more analogous to People v. Flodihn (1979) 25 Cal.3d 561, 159 Cal.Rptr. 327, 601 P.2d 559.

In Flodihn the petitioner had been convicted of narcotics offenses in 1975 and sentenced under the ISL.   After the DSL became law he was screened for a “serious offender” hearing (Pen.Code, § 1170.2, subd. (b)).  The screening criterion (contained in Cal.Admin.Code, tit. 15, § 2162, subd. (b)) which resulted in petitioner's serious offender hearing included prisoners whose ISL parole release date was more than one year later than their tentative DSL release date.   Petitioner's DSL release date was approximately two years earlier than his ISL date.   As a result of the serious offender hearing petitioner's release date was extended to the maximum DSL term possible.

Petitioner contended “the ․ use of the discrepancy between an inmate's ISL tentative parole date and his tentative DSL release date, as a ground for considering an inmate for a serious offender term, was improper ․ [and] ․ created two classes of inmates as of July 1, 1977, which classes were identical in all respects except that those in petitioner's class had already had an ISL tentative parole release date fixed, a fact which subjected them to screening for possible serious offender treatment.   Inmates without an ISL parole date set obviously could not be subject to sentence enhancement on the basis of the term discrepancy alone.”  (25 Cal.3d at p. 567, 159 Cal.Rptr. 327, 601 P.2d 559.)

In Flodihn, the petitioner argued “that because this classification” could lead to differential punishment, his personal liberty, which is concededly a fundamental interest, was directly affected ․ thereby invoking strict scrutiny of “the classification ․” unjustified by administrative convenience.  (Pp. 567–568, 159 Cal.Rptr. 327, 601 P.2d 559.)

The court rejected the argument, citing Zablocki v. Redhail (1978) 434 U.S. 374, 386, 98 S.Ct. 673, 681, 54 L.Ed.2d 618, 630–631 and Califano v. Jobst (1977) 434 U.S. 47, 53–54, 98 S.Ct. 95, 99–100, 54 L.Ed.2d 228, 234–235 for the rule that where the classification “has only an incidental or marginal effect on ‘fundamental’ rights, application of the ‘rational relationship’ test is the appropriate analytical standard.”  (Flodihn, supra, 25 Cal.3d at p. 568, 159 Cal.Rptr. 327, 601 P.2d 559.)

The court explained, “the challenged screening criterion did not directly affect the length of time an inmate spent in custody.   Rather ․ it was used, along with other criteria, merely to accomplish a rough sorting of the approximately 22,000 inmate files.   Any change in custody status occurred only after a properly conducted serious offender hearing.”  (Ibid.)

In the instant case it may similarly be said that the change from the previous procedure to the current procedure likewise has only “an incidental or marginal affect on ‘fundamental’ rights.”   Prior to the 1976 guidelines the Adult Authority exercised extremely wide discretion in setting parole release dates;  neither the shift from that state of affairs nor the change from the guidelines of 1976 to those of 1978 automatically or predictably results in longer sentences.   The current regulation guides the Board in the exercise of its discretion;  it is the exercise of discretion which results in the setting of a particular date.   Further, a life prisoner under ISL was entitled to no particular parole release date;  although entitled to have the Authority (or the Board) properly exercise its discretion, he was not entitled to have the discretion exercised in a particular way.   It cannot be said with any certainty that general application of the current guidelines in a specific instance would result in a longer term than would have obtained prior to adoption of the current regulations.   Therefore, it cannot be concluded the liberty interest is more than marginally or indirectly affected, if at all.

Section 2292 treats all life prisoners equally to the extent that all such prisoners must have parole dates set under current guidelines, which were not designed to favor one group to the exclusion of another.   They were designed in part to promote greater fairness by minimizing unjustified disparities in prison terms.

We conclude the state's interest in promoting uniformity of terms while avoiding potential violations of the prohibition against ex post facto laws is of sufficient magnitude to justify the precise distinction made by section 2292.

The order granting petition for writ of habeas corpus is reversed.

FOOTNOTES

1.   Penal Code section 1506 permits an appeal by the People from a final order of the superior court granting petitioner relief by habeas corpus.

2.   Respondent asserts that his accomplice received a parole hearing in 1976, was found suitable and received a release date of March 1, 1982, which is some 7 years earlier than that of Davis.

3.   We note the first factor listed by Chairman Kerr is addressed to the details of the commitment offense.   As discussed, infra, Davis contends the commitment offense was given little or no emphasis while ISL was in effect, whereas under DSL it is given primary emphasis to his potential disadvantage.

4.   “[ ] CAL. ASSEMBLY COMMITTEE ON CRIMINAL PROCEDURE, DETERRENT EFFECTS OF CRIMINAL SANCTIONS 40 (1968).”

5.   The shift in penological purpose from the ISL to the DSL properly places events in historical perspective, but is of marginal significance to the issues at hand.   In determining whether a law or regulation is ex post facto or violative of equal protection we primarily consider the effect of the law at issue.   Hence, the fact that adoption of the current guidelines approximately coincided with the DSL is not controlling.

6.   Since, as we have explained, Davis had no right to a specific release date under ISL he cannot accurately contend the absence of such date deprives him of equal protection.

7.   As explained, ante, had section 2292 not permitted such prisoners to retain their previously set release dates it would have invited ex post facto violations.   Accordingly, even were we to view the two groups as “similarly situated,” we would conclude the overall goal of promoting uniformity and the specific interest in avoiding potential violations of the prohibition against ex post facto laws is of sufficient magnitude to justify the classification.

CARR, Associate Justice.

REGAN, Acting P. J., and EVANS, J., concur.