IN RE: Robert E. STANLEY (1976)

As counsel for the Adult Authority, the Attorney General has filed a petition for rehearing contending that our opinion of January 8, 1976, failed to recognize a section of the Chairman's April 1975 directive which, according to the Attorney General, is ‘designed to recognize conduct in prison and each individual's potential for reform.’

This court by no means ignored the provision in question. In our opinion we referred to Adult Authority Policy Statement #1, which permitted parole advancement in ‘exceptional and unusual cases.'¹ It seemed to us then, that the Adult Authority's policy statement had the same general objective as the provision allegedly ignored. The latter provision declares that after an initial parole date has been set, it ‘may be subsequently reviewed if the inmate wishes;’ that the review hearing will take place after lapse of two-thirds of the period between sentence-fixing and the initial parole date; that ‘it is the responsibility of the inmate to demonstrate unusual rehabilitation.’ The provision goes on to declare: ‘Any inmate who participates to an unusual degree in rehabilitative programs and can demonstrate his rehabilitation will have the opportunity to do so at this review hearing.’

The Attorney General's argument would stretch a narrow provision beyond its apparent scope. The provision does not inject a routine or required standard into the Adult Authority's parole-fixing decisions. It expressly designates the procedure as a review. It takes place after the lapse of what may be many months. It places upon the inmate the burden of demonstrating Unusual rehabilitation. It falls far short of recognizing in prison behavior and progress toward law-abiding conduct as routine, mandatory criteria.

It is quite apparent that the Adult Authority finds itself in a dichotomous position. According to the Supreme Court, the Authority is obliged to act promptly in fixing sentences of prisoners committed for an indeterminate sentence. (In re Rodriguez (1975) 14 Cal.3d 639, 122 Cal.Rptr. 552, 537 P.2d 384, 654, fn. 18.) Conceivably, parole setting calls for comparable promptness. Comparable promptness, on the other hand, is difficult when the Adult Authority is required to include in-prison conduct and observation among the predictive factors. The Supreme Court has made it clear that parole consideration must be guided in large measure on post-conviction history. (Id. 14 Cal.3d at p. 652, 122 Cal.Rptr. 552, 537 P.2d 384.) As the Attorney General puts it: ‘. . . it is not clear whether it is permissible to adopt any system which would allow an early but tentative decision on parole release.’

The constitutional considerations which impel promptness in sentence-fixing are not present in parole setting. (See In re Rodriguez, supra, 14 Cal.3d at pp. 652—654, 122 Cal.Rptr. 552, 537 P.2d 384.) Within the limitations imposed by statutory parole-eligibility dates, the time period between term commencement and parole hearing is primarily a matter of administrative choice. Readiness for parole varies from one prisoner to another. Among the decisions available to the Adult Authority when an inmate first appears before it are: (a) to fix his parole date, (b) to deny it, and (c) to defer parole setting until the Authority finds itself able to make a responsible, rational and realistic decision. Nothing in the Indeterminate Sentence Law demands a one-stage decisional process or prevents a two-stage procedure, the first stage based upon evaluation of the inmate early in his confinement, the second later in his confinement. The judicially discerned objectives of the statute are accomplished by either procedure, provided that in-prison conduct and progress toward rehabilitation are incorporated in the procedure as routine, mandatory standards.

These objectives are not accomplished by the process described in the Chairman's April 1975 directive parole setting based on pre-confinement history, to which is appended a later, optional review pivoting on the narrow and uncertain standard of ‘unusual rehabilitation.’

The petition for rehearing informs us that the full Adult Authority on December 30, 1975, adopted rules incorporating the provisions of the Chairman's April 1975 directive. It also points out that legislation has been enacted which places the rule-making actions of the Adult Authority under the Administrative Procedure Act and requires it to reconsider existing rules and regulations prior to July 1, 1976. (Stat.1975, ch. 1160; Pen.Code, s 5076.2) These factors were brought to our attention only when the petition for rehearing was filed. They eliminate any question as to the comparative powers of the Chairman and the Adult Authority in the adoption of the parole-setting standards considered in our opinion. (It follows that the legal question raised in footnote 6 of our January 8, 1976, opinion has been eliminated. Footnote 6 is hereby deleted from the opinion. The publishers of the opinion are requested to renumber subsequent footnotes.)

Petitioner Stanley has filed a separate petition for rehearing, pointing out that he did in fact exhaust his administrative remedies by appealing his parole decision to the Adult Authority itself. At the time the parties filed their pleadings and briefs, the matter was of no apparent significance, because the Court of Appeal, Fourth District, Division Two, had not yet filed its decision applying the exhaustion doctrine. (In re Muszalski, 52 Cal.App.3d 475, 125 Cal.Rptr. 281, filed Oct. 24, 1975.) It follows that petitioner Stanley is entitled to the same relief as petitioner Reed. We therefore delete the last two paragraphs of our January 8, 1976, opinion and insert the following in lieu thereof:

‘The Adult Authority is directed to provide petitioners Stanley and Reed new parole hearings conforming to the views expressed in this opinion, the hearings to take place within 30 days after this opinion becomes final. In other respects, both petitions are denied and the orders to show cause discharged.

(CERTIFIED FOR PUBLICATION.)'

As to petitioner Stanley, the opinion and decision are modified as above set forth and his petition for rehearing is denied. The petition for rehearing filed by the Attorney General is denied. (CERTIFIED FOR PUBLICATION.)

FOR THE COURT:

FOOTNOTES

1.  In his petition for rehearing the Attorney General informs us for the first time that this portion of Adult Authority Policy Statement #1 has been deleted.

BY THE COURT:

PUGLIA, P.J. FRIEDMAN, J. PARAS, J. Hearing denied; CLARK and RICHARDSON, JJ., dissenting.