IN RE: Patrick DUARTE

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Court of Appeal, Third District, California.

IN RE: Patrick DUARTE, On Habeas Corpus.

Cr. 11235.

Decided: January 11, 1982

George Duekmejian, Atty. Gen., Robert H. Philibosian, Chief Atty. Gen., Crim. Div., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Ramon M. de la Guardia, Deputy Attys. Gen., for appellant. Michael R. Snedeker, Sacramento, under appointment by the Court of Appeal for respondent.

The People appeal from an order1 granting Patrick Duarte's petition for writ of habeas corpus. The trial court held the Board of Prison Terms violated the prohibition against ex post facto laws and denied Duarte, a life prisoner, equal protection by utilizing only parole guidelines adopted subsequent to his commitment offense.

In 1970, Duarte was sentenced to life in state prison upon conviction of first degree murder and first degree robbery.

While serving his prison term, Duarte was convicted on October 26, 1978, in San Bernardino County Superior Court of assault on a correctional officer and was sentenced to a concurrent term of sixteen months.

In February of 1979 and 1980, Duarte's suitability for parole was evaluated in accordance with guidelines set forth in California Administrative Code, title 15, section 2281.2 He was found unsuitable as posing an unreasonable risk of danger to society by reason of his violent history, his serious and continuing misconduct in prison (having been found responsible for 37 disciplinary infractions), and psychiatric diagnoses of an antisocial personality disorder and drug dependence on barbiturates.

Duarte concedes even under the criteria contained in former title 15, California Administrative Code, section 23013 he might have been found unsuitable for parole, but asserts he eventually will be found suitable for parole, and he is entitled to annual hearings pursuant to both sets of rules, and application of the earliest of the two parole release dates. That was the order of trial court.4

I

EX POST FACTO

The essence of Duarte's ex post facto claim may be summarized as follows: (1) the current administrative guidelines (contained in current title 15) for setting parole dates produce a more onerous result than administrative guidelines in effect from 1976 to 1978 (contained in former title 15); (2) the 1976 administrative guidelines were operative while the Indeterminate Sentencing Law (ISL) was in effect and were replaced when the Determinate Sentencing Law (DSL) took effect; (3) he committed the offense for which he is imprisoned while the ISL was in effect and therefore the administrative guidelines of former title 15 apply.

“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.)

A. Annexed to the Crime.

The 1976 regulations were not the law annexed to the crime at the time the crime was committed in 1969, and it is impossible to conclude that the pertinent law annexed to the crime at the time it was committed was less onerous than the current regulations. We review the procedures and the criteria employed when the offense was committed.

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. The typical procedure is described in In re Sturm (1974) 11 Cal.3d 258, 262, 113 Cal.Rptr. 361, 521 P.2d 97: “Under that practice, the hearing is generally held by two members of the Authority who ride circuit between various prisons. They are assisted by a correctional counselor from the particular institution where the hearing is being held. (Citation.) In the normal hearing, which generally lasts no more than 10 minutes due to the fact that the panel must hear approximately 25 cases a day, the customary practice is for one Authority member to interview the inmate while the correctional counselor keeps minutes. Meanwhile the other Authority member usually reads a file pertaining to the next inmate who will appear, which file contains the cumulative case summary prepared by the prison staff and recommendations, if any, regarding his readiness for release. Following the brief appearance of the inmate the interviewing panel member states his proposed decision to the other panel member. There is rarely any disagreement between the two and their votes are recorded by the correctional counselor in the minutes. These notes constitute the only written record of the decision for the enlightenment of future panels. Usually they consist of a Form 279 which contains a summary of the impression the prisoner made on panel members at the interview, together with panel members' comments regarding the inmate and a Form 244 vote sheet indicating the decision. (Citation.) Some period of time after the hearing the inmate is officially informed of the results. If it is a denial, he meets with his correctional counselor who has had access to the hearing minutes and who attempts to explain the decision. (Citation.)” (Fn. omitted.)5

The law annexed to the crime at the time of its commission by Duarte permitted the Adult Authority to exercise abundant discretion in each individual case. When the Adult Authority applied a “blanket rule” to a particular prisoner, the court held, “If every offender in a like legal category receives identical punishment, prisoners do not receive individualized consideration. Such a policy violates the spirit and frustrates the purposes of the Indeterminate Sentencing Law and the parole system.” (In re Minnis (1972) 7 Cal.3d 639, 645, 102 Cal.Rptr. 749, 498 P.2d 997; fn. omitted.)

Similarly, in In re Stanley (1976) 54 Cal.App.3d 1030, 126 Cal.Rptr. 524 we held invalid a particular directive issued by the Chairman of the Adult Authority prescribing a base offense for each applicant and directing selection of either a typical or aggravated range for the base offense. “The primary factor in fixing the base period (was) the seriousness of the commitment offense; other factors such as ... age, pattern of criminality and ‘serious or major disciplinary offenses' (could) be considered.” (Pp. 1034-1035, 126 Cal.Rptr. 524.) We stated, “(i)ts reliance upon a table of time increments clashes with the (ISL's) discerned demand for reasoned individualization.” (P. 1040, 126 Cal.Rptr. 524.) “Its mechanistic resort to past criminality runs counter to the accentuated need for periodic, individualized review of parole potential.” (Pp. 1041-1042, 126 Cal.Rptr. 524.)

The rules which Duarte argues must apply to him were contained in former title 15 of the California Administrative Code, Division 2, and took effect after the Stanley decision-on June 1, 1976. In Stanley we noted that although the ISL omitted express enumeration of parole criteria, they “have emerged from six decades of judicial interpretation.” (P 1036, 126 Cal.Rptr. 524.) In his petition Duarte admitted that “whether (those) Rules (of former title 15) could have survived a challenge similar to that presented the Court in Stanley is uncertain-the rules were not in effect long enough for appellate consideration (having been repealed July 14, 1978).” His observation is astute as the rules of former title 15 appear to suffer an infirmity which contributed to the invalidity of the particular directive at issue in Stanley, namely, a mechanistic approach rather than “reasoned individualization.” Nevertheless, Duarte seeks application of “the first (and only) set of rules drawn up pursuant to the ISL,” while acknowledging the tenuousness of the rules for their failure to comport with what the Stanley court characterized as ISL's “discerned demand for reasoned individualization.” This refines to a contention that he is entitled to a hearing applying those rules because he committed his offense while the ISL was in effect, though the rules were not yet in effect.

Duarte further contends the onerous effect of the current guidelines is implicit in the “profound policy shift” which occurred when the DSL replaced the ISL. While the penological goal under the ISL was reformation of the offender (In re Minnis, supra, 7 Cal.3d 639, 644, 102 Cal.Rptr. 749, 498 P.2d 997), under the more pragmatic approach of the DSL the stated purpose of imprisonment is punishment. (Pen.Code, s 1170, subd. (a)(1).) This Duarte asserts places the focus of the parole inquiry under DSL on the nature of the crime itself rather than on the prisoner's conduct in prison. The underlying policy of the now obsolete ISL was explained by the Court as: “In the general field of criminal law the Legislature has abandoned the ancient notion of categorical punishment, the infliction of fixed terms for certain crimes, and substituted the indeterminate sentence, leaving to the Adult Authority the judgment of the period of incarceration. The Adult Authority does not fix that period pursuant to a formula of punishment, but in accordance with the adjustment and social rehabilitation of the individual analyzed as a human composite of intellectual, emotional and genetic factors.” (People v. Morse (1964) 60 Cal.2d 631, 642-643, 36 Cal.Rptr. 201, 388 P.2d 33.) Further that, “Although good conduct while incarcerated and potential for reform are not the only relevant factors, ( ) this court has acknowledged their significance. (Citations.) Furthermore, the Authority has declared that these factors are among those of ‘paramount importance.’ (Cal. Adult Authority, Principles, Policies and Program (1952) pp. 8-9; see also Adult Authority Policy Statement No. 11 (June 27, 1966).) Any official or board vested with discretion is under an obligation to consider all relevant factors (citation), and the Authority cannot, consistently with its obligation, ignore postconviction factors unless directed to do so by the Legislature.” (In re Minnis, supra, 7 Cal.3d at p. 645, 102 Cal.Rptr. 749, 498 P.2d 997; original emphasis.)

While there is merit to the contention that current guidelines reflect a shift away from the policy of the ISL in effect at the time of the commitment offense, Duarte cannot show that exercise of the broad discretion under applicable ISL standards would have produced a result less onerous than that which he may obtain under current regulations.6 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.

An analogous circumstance to the one at bar confronted the United States Court of Appeals for the District of Columbia Circuit in the recent case of Warren v. United States Parole Commission (D.C.App.1981) 659 F.2d 183. In Warren the petitioner contended “the application to his case of parole guidelines promulgated after his first conviction violates the Ex Post Facto Clause of the Constitution.” (P. 185.) When he was sentenced in 1969, the rehabilitative model was in fashion .... “(A) parole authority would periodically review the criminal's progress toward rehabilitation, releasing him when his imprisonment had served its purpose....” (Id. 190.) Once eligible, an inmate's application would be considered by a hearing examiner who was guided by a rather vague and general statutory directive “about the prisoner's ability to live in society.” This system had little if anything in the way of procedural safeguards and called for an unstructured exercise of discretion that could easily produce arbitrary results. (Id. 191.)

“To remedy both these defects the Board began a series of experimental programs and pilot projects in the early part of the last decade. This effort culminated in the Parole Commission and Reorganization Act of 1976, which provided a statutory basis ... (for) guidelines promulgated by the Parole Commission.” (Id. 191.)

The analysis of Warren, supra, bears on the issues herein: The issue in that case was whether the ex post facto clause forbade the Parole Commission from referring to its guidelines when it exercised its discretion (with respect to) Warren. To offend the ex post clause the guidelines somehow had to increase Warren's punishment. But the Parole Commission could choose not to follow the guidelines, and no one knew what the old Board would have done in Warren's case. The court could not say that the category of prisoners to which Warren belonged had been disadvantaged by the guideline system, which grew directly out of the old Board's past practices. The guidelines embodied what may well have been the Board's practice anyway. Warren's chance of receiving a far below-average reparole term may have been reduced by the guidelines, but that was compensated by a corresponding decrease in his chance of receiving a far above-average term. Thus the guidelines may not have offended the ex post facto clause in Warren's case simply because they may not have worsened his position.

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

“In this state the parole power is vested in the Adult Authority. (Pen.Code, ss 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.) The Schoengarth court further stated: “The Adult Authority, by statute, has exclusive jurisdiction to fix the length of time a prisoner must serve within the limits of an indeterminate sentence. (Pen.Code, ss 5077, 3020.) One who is legally convicted has no vested (7 ) right to the determination of his sentence at less than maximum (In re McLain (1960) 55 Cal.2d 78, 87 (9 Cal.Rptr. 824, 357 P.2d 1080); In re Smith (1949) 33 Cal.2d 797, 804 (205 P.2d 662); In re Byrnes (1948) 32 Cal.2d 843, 850 (198 P.2d 685); In re Cowen (1946) 27 Cal.2d 637, 641 (166 P.2d 279) ), and hence the authority ‘may redetermine such sentences as conditions require’ (In re McLain, supra, 55 Cal.2d at p. 84 (9 Cal.Rptr. 824, 357 P.2d 1080); Pen.Code, s 3020).” (66 Cal.2d at P. 302, 57 Cal.Rptr. 600, 425 P.2d 200.)

Duarte was not entitled to have the Adult Authority exercise its discretion in a specific way, and 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 under the current regulations the controlling parole date is the earlier. Were it otherwise, possible ex post facto violations could result. (Cf. Weaver v. Graham, supra, 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, Duarte's circumstance is crucially distinct 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 Duarte 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.

B. Procedural Rules Altered the Method for Determining Parole Matters.

Duarte contends the shift in penological purpose from reformation under the ISL to punishment under the DSL resulted in a corresponding shift with respect to the factors considered by the board. In support of his petition at the trial level Duarte sought to dramatize the shift by comparing the 1976 guidelines to the current guidelines. We conclude even if the Board in exercising its discretion under current guidelines now places different weight on certain factors, or considers new factors or excludes factors previously considered, the legislatively mandated change is procedural and does not affect matters of substance.

In Dobbert v. Florida (1977) 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344, the U.S. Supreme Court rejected a contention that a statutory “change in the role of the judge and jury in the imposition of the death sentence in Florida between the time of the first-degree murder and the time of the trial constituted an ex post facto violation.” The court explained, “The new statute simply altered methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime.”

Likewise, “In Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898), a defendant was convicted of murder solely upon circumstantial evidence. His conviction was reversed by the Missouri Supreme Court because of the inadmissibility of certain evidence. Prior to the second trial, the law was changed to make the evidence admissible and defendant was again convicted. Nonetheless, the Court held that this change was procedural and not violative of the Ex Post Facto Clause.” (Dobbert v. Florida, supra, 432 U.S. at p. 293, 97 S.Ct. at p. 2298.) By analogy, the current administrative law, promulgated in accordance with the DSL, which changes the manner in which the Board exercises its discretion by allowing the Board to emphasize different factors is a procedural change not violative of the prohibition against Ex Post Facto laws.

Just as an “accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offense....” (People v. Ward, supra, 50 Cal.2d at p. 707, 328 P.2d 777), neither is a prisoner entitled to be evaluated for parole in the exact mode employed at the time of commission of the offense. In People v. Ward, supra, at pages 707 through 708, 328 P.2d 777, the Supreme Court cited Cooley in his treatise on Constitutional Limitations: “ ‘But so far as mere modes of procedure are concerned, a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime....’ ”

We are satisfied that application of the current guidelines to Duarte will not deprive him of any right enjoyed at the time he committed the offense for which he is imprisoned.

To summarize, we conclude the Board may exercise its discretion pursuant to current guidelines without running afoul of 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 (moreover 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

In In re Henson (1981) 123 Cal.App.3d 518, 176 Cal.Rptr. 693, the First District considered the question now before us and concluded that “(t)he parole date setting scheme embraced in section 2292 ((Cal.Admin.Code) ) results in a denial of equal protection ... to the extent that it denies life prisoners who did not have parole release dates established under the ISL guidelines prior to July 1, 1977, the benefit of a hearing under those regulations and a release on the earlier of the two dates.” (Id. at p. 522, 176 Cal.Rptr. 693; fn. omitted.) The court reasoned that “members of petitioner's class have an interest in being free from incarceration as soon as possible, and in reliance upon People v. Olivas (1976) 17 Cal.3d 236, 245, 251, 131 Cal.Rptr. 55, 551 P.2d 375, the interest at stake was a ”fundamental interest.“ The court further reasoned that since a fundamental interest is involved the classification is subject to strict scrutiny and therefore the state has the burden of establishing that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose. (In re Henson, supra, 123 Cal.App.3d at pp. 521-522, 176 Cal.Rptr. 693; citing People v. Olivas, supra, 17 Cal.3d at p. 251, 131 Cal.Rptr. 55, 551 P.2d 375.) In applying strict scrutiny the Henson court found no compelling state interest to justify the classification. Our analysis leads to the conclusion strict scrutiny is not applicable and therefore we respectfully depart from the holding in Henson, supra.

The Attorney General contends the circumstances of this case fall within the rule of In re 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, s 1170.2, subd. (b)). The screening criterion (contained in Cal.Admin.Code, tit. 15, s 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 it “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, and Califano v. Jobst (1977) 434 U.S. 47, 53-54, 98 S.Ct. 95, 99-100, 54 L.Ed.2d 228, 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.” (In re 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 occurred only after a properly conducted serious offender hearing.” (Id.)

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.

The current guidelines are not intended to increase the terms of life prisoners, nor can it be demonstrated that the current guidelines have that effect. While a particular prisoner can argue that as to him application of the current guidelines probably increases the length of his incarceration in an equal protection analysis, we look to the law which creates the classification to determine the general extent to which a liberty interest is affected.8 Here, the effect is speculative and would vary from case to case.

Respondent urges that In re Kapperman (1974) 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657, “is far closer to the present case than Flodihn.” Kapperman, supra, concerned Penal Code section 2900.5, subdivision (c), which limited application of presentence credit to those persons delivered into the custody of the Director of Corrections on or after March 4, 1972, the effective date of the section. The date of delivery to custody was arbitrary and although the petitioner was serving terms within a maximum of life, it was certain that denial of specific calculable credit would affect the date petitioner would first become eligible for parole. In the instant case it cannot be ascertained with similar certainty whether or to what extent application of the current guidelines actually affects inmates' liberty interests. The change in law was not intended to increase or decrease the length of incarcertaion time, but to promote uniformity. Moreover, even in Kapperman, supra, where the liberty interest was clearly affected to a greater extent than here, the test applied by the Supreme Court was “whether the classification ... is supported by a rational and legitimate state interest.” (Id. at p. 546, 114 Cal.Rptr. 97, 522 P.2d 657; emphasis added.)

Section 2292 treats all life prisoners equally to the extent that all such prisoners must have parole dates set under current guidelines. The current regulations were not designed to confer a specific benefit upon one group to the exclusion of another. They were designed in part to promote greater fairness by minimizing unjustified disparities in prison terms, relative to specified criteria. Section 2292 permits a prisoner with a previously set parole date to retain that date and to be released on the earlier of the two dates. As the court observed in In re Henson, supra, 123 Cal.App.3d at page 520, 176 Cal.Rptr. 693, the regulation would have invited ex post facto problems had it not permitted those prisoners with dates previously established to retain those dates.

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. Further, it would be unduly burdensome to require the Board to provide each life prisoner with a hearing under rules or guidelines formerly in effect. Such a result would inhibit the continuing refinement and improvement of existing rules by requiring the Board to provide numerous inmates with multiple hearings under every procedural variation promulgated throughout the entire span of an inmate's incarceration.

We conclude no violation of equal protection results from differentiating between life prisoners whose release dates had been set while the former guidelines were in effect and prisoners without previously assigned release dates. Accordingly, 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.  Section 2281 provides: “(a) General. The panel shall first determine whether a prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison. (P) (b) Information Considered. All relevant, reliable information ... shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's: social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability. (P) (c) Circumstances Tending to Show Unsuitability.... These circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate unsuitability include: (P) (1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: (P) (A) Multiple victims were attacked, injured or killed in the same or separate incidents. (P) (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. (P) (C) The victim was abused, defiled or mutilated during or after the offense. (P) (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. (P) (E) The motive for the crime is inexplicable or very trivial in relation to the offense. (P) (2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age. (P) (3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others. (P) (4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim. (P) (5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense. (P) (6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail. (P) (d) Circumstances Tending to Show Suitability. The following circumstances each tend to show that the prisoner is suitable for release. The circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate suitability include: (P) (1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims. (P) (2) Stable Social History. The prisoner has experienced reasonably stable relationships with others. (P) (3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or the prisoner has given indications that he understands the nature and magnitude of the offense. (P) (4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress had built over a long period of time. (P) (5) Lack of Criminal History. The prisoner lacks any significant history of violent crime. (P) (6) Age. The prisoner's present age reduces the probability of recidivism. (P) (7) Understanding and Plans for Future. The Prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release. (P) (8) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.”

3.  Section 2301 provided:“Examples of factors will be considered in determining whether an inmate is unsuitable for release on parole include:“(a) History of violent acts on others.“(b) History of forcible sexual attacks on others.“(c) The presence of a psychiatric or psychological condition related to the inmate's criminality which creates a high likelihood that new violent crimes will be committed.“(d) A pattern of criminal behavior which is so persistent that substantial evidence of change for the better must be demonstrated.”

4.  The court's order recited: “On both ex post facto and equal protection grounds petitioner is constitutionally entitled to an immediate parole release hearing pursuant to the standards of punishment in effect under the Indeterminate Sentence Law as well as the Determinate Sentence Law, and annual hearings thereafter, and to have a parole release date fixed pursuant to whichever release date provides the lesser period of prison confinement.”

5.  The criteria used in the decision making process during the ISL era was reviewed in the following account. “The Legislature has given no guidance to the Adult Authority in the way of criteria for decision making; the courts have likewise largely abstained from establishing criteria or ruling on the validity of factors considered by Adult Authority panels except to say that the agency must, ‘discharge its responsibilities in good faith, neither arbitrarily nor capriciously....’ ” (As authority for this point the author cites In re Tucker (1971) 5 Cal.3d 171, 95 Cal.Rptr. 761, 486 P.2d 657.)“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. (We note the first factor listed by Chairman Kerr is addressed to the details of the commitment offense. As discussed, infra, Duarte 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.)“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.” (“( ) CAL. ASSEMBLY COMMITTEE ON CRIMINAL PROCEDURE, DETERRENT EFFECTS OF CRIMINAL SANCTIONS 40 (1968).”“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.)

6.  We note that apparently the trial court itself was uncertain as to whether the previous practice was less onerous than the current regulations, for in its order granting the petition the court permitted Duarte to obtain the benefit of whichever set of regulations proved to be less onerous. An order stated in the alternative would be unnecessary were the current regulations clearly more onerous.

7.  In Weaver v. Graham (1981) 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17, the Supreme Court stated that a law need not impair a “vested right” to violate the ex post facto prohibition. (450 U.S. p. 30, 101 S.Ct. at 965, P. 24) “Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment but the lack of fair notice and governmental restraint when the Legislature increases punishment beyond what was prescribed when the crime was consumated.” (450 U.S. p. 30, 101 S.Ct. p. 965, P. 24) The significance of the phrase, “no vested right” (as expressed by the California Supreme Court) to the instant context means only that when the crime was consumated Duarte had no right to be paroled at any fixed time and therefore cannot demonstrate that the current regulations increase the punishment over what he would have received.

8.  For example, a particular inmate might seek to demonstrate that during one year the Board was composed of members more “lenient” in exercising their discretion than members during the subsequent year. Although an inmate's liberty interest is affected, and although he is similarly situated to prisoners whose date was set by more “lenient” Board Members, the law itself does not directly affect the liberty interest. The prisoner would not be entitled to have the subsequent Board members exercise discretion in precisely the same manner that it might have been exercised by former Board members.

CARR, Associate Justice.

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