IN RE: David A. HUTCHINGS

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Court of Appeal, Fourth District, Division 3, California.

IN RE: David A. HUTCHINGS, on Habeas Corpus.

G003244

Decided: April 29, 1986

Robison D. Harley, Jr., Santa Ana, under appointment by the Court of Appeal, for petitioner. No appearance for respondent. John K. Van de Kamp, Atty. Gen., Keith I. Motley and Robert B. Shaw, Deputy Attys. Gen., for real parties in interest.

OPINION

We are faced with an unusual case of first impression.   Can a released inmate be returned to prison for violating the terms of a parole he was never aware of?

3

David Hutchings was serving California prison sentences from two different counties when he was transported to Orange County for resentencing on one of his two commitments.   At that time, he had already fulfilled a four year commitment out of Solano County and was serving a consecutive term for an offense in Orange County.   In Orange County, the consecutive term was vacated and the matter was set for resentencing.   The superior court ordered Hutchings' release on his own recognizance, pending the preparation of a new probation report.   The judge ordered the prison's detainer stricken and Hutchings was released.

Following his release from the Orange County jail, Hutchings reported to the probation department on two occasions.   He also called the Vacaville corrections department facility, where he had been serving his sentences, for permission to retrieve his personal belongings there.   Four days after his release, Hutchings went to Vacaville and picked up his property.   Despite these contacts with both the Orange County probation department and prison officials in Vacaville, Hutchings was never informed he was on parole.

After twice reporting to the probation department, Hutchings failed to appear for his resentencing in Orange County.   He was not apprehended and returned to Orange County for more than a year.   On the original Orange County case he was eventually sentenced to a low term with credit for time served for the entire sentence.   He received a separate one year sentence in the Orange County jail for failing to appear;  and yet another separate sentence for misdemeanor offenses committed since his release from the Orange County jail.   A parole hold was lodged.   Hutchings was notified he faced a parole revocation hearing for committing new offenses and not reporting to his parole officer while on parole from the Solano County commitment.   He was found in violation and returned to prison for a year.   We ordered his release pending resolution of this writ proceeding.

Hutchings first contends he was never notified he was on parole.   The People argue he is not entitled to relief because the “sole” reason for his not being notified was his own conduct in absconding.

 Initially, we observe the superior court was without jurisdiction to strike the prison detainer as it related to Hutchings' Solano County sentence.   In reviewing the record, it is fair to say the superior court may not have intended that, since counsel was arguing the detainer as to the Orange County sentence should be dissolved, just before the court ordered “the detainer stricken and set aside based on the finding by the Court of Appeals that the original commitment was invalid.   No detainer issuing as a result of that sentence should have any force and effect․”  Regardless of the court's intent, the order was interpreted as striking the detainer in its entirety and Hutchings was released.   Prison officials had a lawful detainer to demand Hutchings' return after dealing with his Orange County case because of his Solano County commitment.   Orange County had no jurisdiction to interfere with that.   Had proper procedures been followed, Hutchings would have been ordered released on the Orange County case, but transported back to Vacaville, in custody, on the detainer.   There, prison officials would have undoubtedly computed his retroactive release date and processed his actual release, including notification of parole requirements.   In any event, that was not done, and Hutchings was released but never notified of his parole obligations on the Solano County sentence.

 We recognize the Determinate Sentencing Law expressly mandates a period of parole:  “A sentence ․ shall include a period of parole, unless waived, ․” (Pen.Code, § 3000;  see also People v. Montenegro (1985) 173 Cal.App.3d 983, 988, 219 Cal.Rptr. 331;  In re Jantz (1984) 162 Cal.App.3d 412, 417, 208 Cal.Rptr. 619.)   The Board of Prison Terms did not waive Hutchings' parole from the Solano County commitment.   By operation of law, he was on parole following his release from the Orange County jail, for a period not to exceed three years (Pen.Code, § 3000, subd. (a)).  Hutchings is entitled to credit against that three-year parole period because of confinement beyond the date he was entitled to release from the Solano County sentence.  (See Pen.Code, § 1170, subd. (a)(2);  see also In re Sosa (1980) 102 Cal.App.3d 1002, 162 Cal.Rptr. 646.)   The beginning date of parole should be fixed at the date he would have been released on the Solano County sentence, December 30, 1983.

The more difficult question is whether Hutchings can be returned to prison for violating parole during the period he was unaware he was on parole.   He was found in violation for committing new offenses as well as absconding and not reporting to his parole officer.   Common sense tells us revocation would be fundamentally unfair;  two distinct legal concepts support this conclusion.

 First, we have determined the elements of equitable estoppel are present in this case and prevent Hutchings' return to prison for parole violations occurring prior to April 23, 1985, the date he was apprehended after absconding.  Johnson v. Williford (9th Cir.1982) 682 F.2d 868 held the government was estopped to deny Johnson's eligibility for parole once he was paroled in spite of a specific statute prohibiting his parole.   Johnson relied on an earlier Ninth Circuit case which outlined the elements of equitable estoppel:  (1) The party to be estopped must know the facts and must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended;  and, (2) the party asserting the estoppel must be ignorant of the facts and must rely on the former's conduct to his injury.  (United States v. Georgia-Pacific Company (9th Cir.1970) 421 F.2d 92, 96;  see also Hampton v. Paramount Pictures Corporation (9th Cir.1960) 279 F.2d 100, 104.)

Here, despite the People's assertion to the contrary, the government knew of Hutchings' release without notification of his parole status.   After all, he retrieved his personal property from prison officials four days after he was released.   Their conduct at that time was consistent with Hutchings being free of parole;  at the least the government acted in a manner suggesting Hutchings had a right to believe he was not on parole.   The government had an opportunity then to notify him he was on parole, but did not.   This fact also flies directly in the face of the People's argument it was only Hutchings' absconding which prevented them from notifying him he was on parole.   His absconding merely obviated a second opportunity to notify him, prison officials having missed the first.   Hutchings did not know he was on parole, until apprehended more than a year later.   The People suggest he should have known he was on parole because he should have been notified of that requirement at the time of the sentence and because he had served prison sentences including parole periods previously.   However, we have no evidence to that effect and we will not speculate that is true where the evidence we do have is to the contrary.   Finally, because he did not report for parole supervision, it is clear Hutchings relied on the government's conduct which suggested he was not on parole.

 Although it appears the elements of equitable estoppel are satisfied and justify issuance of a writ of habeas corpus, we also conclude basic due process principles require the same result.  (See Johnson v. Williford, supra, 682 F.2d at p. 873.)  “[I]n some cases ‘fundamental principles of liberty and justice,’ would be violated if a person were required to serve the remainder of a prison sentence after he had been released prematurely from custody through no fault of his own, and had made a good adjustment to society.”  (Ibid., quoting from United States v. Merritt (D.C.Cir.1979) 478 F.Supp 804, 807–808.)   While we cannot say Hutchings has made a good adjustment to society, he was released from custody without notice of his parole status through no fault of his own.   To return him to prison because he violated parole conditions he was unaware of violates “fundamental principles of liberty and justice.”

Hutchings raises other contentions we need not address, namely whether he had a right to counsel during parole revocation proceedings and whether he was entitled to a prerevocation revocation hearing.

The order revoking Hutchings' parole and returning him to prison is annulled.   We have previously directed Hutchings to report for parole supervision which shall continue consistent with this opinion.

WALLIN, Associate Justice.

TROTTER, P.J., and SONENSHINE, J., concur.

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