IN RE: Stig Runnie Lennert FLODIHN on Habeas Corpus. (1979)

This is a petition for a writ of habeas corpus challenging the Community Release Board's enhancement of petitioner's sentence pursuant to a serious offender hearing (Pen.Code, s 1170.2, subd. (b)). Since the procedure whereby petitioner was selected for a serious offender hearing violated article I, section 7 of the California Constitution, and the Fourteenth Amendment to the Constitution of the United States, we grant his petition. For the reasons set forth herein, petitioner should be released forthwith from parole.^[FN1]

Pursuant to a March 10, 1975 jury conviction, petitioner was sentenced to prison for the terms prescribed by law for two offenses: possession of heroin for sale (Health & Saf.Code, s 11351), and possession of a controlled substance (Health & Saf.Code, s 11377). Petitioner was given concurrent terms under the Indeterminate Sentence Law (ISL) then in effect.

At the time of the arrest which led to the March 10, 1975 conviction, petitioner was on parole in connection with a November 27, 1970 conviction of sale of a narcotic (Health & Saf.Code, s 11501) and sale of marijuana (Health & Saf.Code, s 11531). Petitioner's record reveals no other convictions.

On July 1, 1977, the date when the Determinate Sentence Law (DSL) went into effect, petitioner was serving his ISL term at Soledad Prison. Before that date, the Adult Authority had assigned him a primary discharge date of October 6, 1981, with a tentative parole date of September 6, 1979. Penal Code section 1170.2 provides that the DSL shall be retroactive to a certain extent. That section provides that a new agency, the Community Release Board (CRB), should calculate tentative release dates under the DSL for all inmates serving ISL terms at the time when the DSL became effective. Under the procedure set out in Penal Code section 1170.2, subdivision (a), subject to CRB approval, CRB staff calculated petitioner's DSL tentative release date, with good time credit, as September 3, 1977. This date was approximately two years earlier than the parole date that had previously been set for him by the Adult Authority under the ISL.

Penal Code section 1170.2, subdivision (c) provides that where the tentative DSL release date is Later than the inmate's ISL release date, the inmate shall keep his ISL release date. On the other hand, where the tentative DSL release date is Earlier, or where no ISL release date has been set, the tentative DSL release date is to become the inmate's release date, unless his sentence is enhanced pursuant to section 1170.2, subdivision (b).

Section 1170.2, subdivision (b) states the grounds on which the CRB may enhance an inmate's tentative DSL sentence. Pursuant to a hearing, hereafter termed a “Serious Offender Hearing,” the CRB may enhance an inmate's sentence “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.” (s 1170.2, subd. (b).)

The CRB did not hold a Serious Offender Hearing in the case of every inmate who had not been given an ISL release date, or whose tentative DSL release date was earlier than the ISL release date which he had been given. As an administrative convenience, the CRB adopted regulations providing for a “screening” system so that only inmates who met certain threshold criteria would be considered for DSL enhancement and given Serious Offender Hearings. The CRB's screening criteria are set out in the California Administrative Code, title 15, section 2162, subdivision (b)(1)-(6)^[FN2] adopted July 1, 1977. At the time that petitioner was selected for a Serious Offender Hearing, only inmates who met one of the following screening criteria were subject to such a hearing under section 2162: (1) persons who had been convicted of certain enumerated crimes, each of which entails violence or sexual misconduct involving the use of force; (2) persons upon whom consecutive sentences had been imposed; (3) persons who had suffered three or more felony convictions for certain enumerated crimes, or five or more felony convictions for any crimes; (4) persons with two or more prior prison terms; (5) persons serving sentences for crimes involving deadly weapons, firearms, or great bodily injury to the victim; or (6) persons whose ISL parole date was more than one year later than their DSL release date. Any inmate under the ISL who did not fall into any of these six categories would not be subject to having his tentative DSL sentence enhanced, and hence the tentative DSL release date would be assigned to him as his release date.

Petitioner, as the facts set out above demonstrate, fell within only one of these six categories, namely, the sixth. Thus, he was considered for sentence enhancement only because his ISL parole date was more than one year later than his tentative DSL release date.^[FN3] Subsequently, when the CRB had screened all inmates who had been given ISL parole dates, the sixth criterion became obsolete, and the regulation was amended to delete it.^[FN4]

Petitioner was eventually given a Serious Offender Hearing and, on the basis of his two convictions for drug-related offenses, and his single prior prison term, his tentative DSL sentence was enhanced by a total of 20 months with a tentative release date of June 1979.^[FN5]

A. The method whereby petitioner was selected for a Serious Offender Hearing deprived petitioner of his right to equal protection of the law.

The CRB's 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 sentence enhancement, created two classes of inmates as of July 1, 1977. The inmates in the two classes were identical in every respect except one: those in one class had had an ISL parole date set which was more than a year longer than the tentative release date calculated under the DSL, while those in the other class either had not had an ISL parole date or had one less than a year longer than the DSL tentative release date. An inmate whose record was identical to petitioner's but who had not been assigned an ISL release date, would not have fallen into any of the categories of inmates who were liable for Serious Offender Hearings and sentence enhancement, under section 2162, subdivision (b). With the deletion of the criterion involving release date discrepancy, all inmates sentenced under the ISL whose records are identical to petitioner's are now routinely passed over by the CRB in its screening of the prison population for candidates for sentence enhancement. Thus, petitioner was swept into the sentence enhancement process, and ultimately sentenced to serve 20 additional months in prison, simply by virtue of the fact that the Adult Authority had assigned him a tentative parole date which was more than a year after a tentative release date calculated under the DSL.

Since his membership in the class created by the rule determined that petitioner's sentence might be substantially enhanced, this is clearly a classification which touches petitioner's interest in personal liberty, a fundamental interest for purposes of equal protection analysis. (People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375.) Therefore, the CRB's rule is not clothed in a presumption of constitutionality; the People must prove that this classification is necessary to some compelling state interest. In other words, the CRB rule is subject to a strict scrutiny standard of judicial review. (17 Cal.3d at p. 251, 131 Cal.Rptr. 55, 551 P.2d 375.)

The reason for the use of the sentence discrepancy criterion, as argued by the People in this case, was administrative convenience. Penal Code section 1170.2, subdivision (b), authorizes the CRB to consider sentence enhancement in the case of any inmate who either (1) had no ISL release date assigned, or (2) had had an ISL release date assigned that was later than his tentative DSL release date. Rather than giving all such inmates Serious Offender Hearings, the CRB used its screening procedure to obviate the necessity of hearings for inmates whose records showed no apparent grounds for enhancement. The problem which petitioner's case illustrates arose, not because a screening system was used, but because one of the Particular criteria used operated inequitably in that it created two classes of similarly situated inmates who were nevertheless subject to different treatment.^[FN6] It does not appear that this particular classification serves the interest of administrative convenience, as argued; it does not appear, in fact, that it serves any state interest at all, whether compelling or not. But even if the challenged criteria did facilitate the processing required in the changeover from the ISL to the DSL, we had not thought it to be the law that constitutional rights could be sacrificed on the altar of administrative convenience.

B. Insofar as application of section 2162, subdivision (b)(6) resulted in different sentences for similarly situated inmates, that section was inconsistent with the purpose of the statute it was designed to implement.

In the Declaration of Purpose prefacing the Determinate Sentence Law (Pen.Code, s 1170), the Legislature specified that uniformity of sentence for offenders “committing the same offense under similar circumstances” is a fundamental purpose of the Determinate Sentence Law. That the CRB should adopt rules resulting in widely different sentences for inmates similarly situated is thus directly contrary to the stated purpose of the law. To the extent that section 2162 was such a rule, it was invalid under Government Code section 11374.^[FN7]

C. The fact that the CRB's decision at petitioner's Serious Offender Hearing was not grounded on clearly defined criteria, deprived petitioner of due process of law.

Pursuant to his Serious Offender Hearing, petitioner received the maximum sentence enhancement possible for his prior prison term and multiple convictions. (See ss 2166, 2167.) However, according to section 2162, those prior and multiple convictions were not in themselves sufficient to “qualify” petitioner for a Serious Offender Hearing in the first place. This anomaly suggests that, at petitioner's hearing, the CRB applied criteria not stated in its official reasons for its decision. If the CRB applied unstated criteria in the Serious Offender Hearing given petitioner, that in itself would be a sufficient ground for overturning the Board's decision. (Franklin v. Shields (4th Cir. 1977) 569 F.2d 784; see also Grattan v. Sigler (9th Cir. 1975) 525 F.2d 329.) The People argue that the CRB simply relied on the criteria for enhancement set out in the statute, Penal Code section 1170.2 subdivision (b). But the fact that the CRB could enhance petitioner's sentence in reliance on factors that the Board itself apparently considered insufficient to justify an enhancement hearing in the first place, suggests that the CRB may have acted arbitrarily in enhancing petitioner's tentative DSL sentence.

The procedure whereby petitioner was selected for a Serious Offender Hearing deprived him of equal protection of the laws; and the fact that the CRB had not adequately defined the criteria for enhancement of sentence resulted, in petitioner's case, in a deprivation of due process of law. Had the sentence discrepancy criterion not been a part of the screening process at the time petitioner's case was considered, petitioner's sentence would not have been enhanced; his tentative DSL release date would have become his release date. In the circumstances of this case, then, justice requires that petitioner's tentative DSL release date be reinstated as his release date.

Accordingly, the petition for writ of habeas corpus is granted and petitioner is to be discharged from parole forthwith.

FOOTNOTES

1.  On rehearing, respondent argues that the petition is moot because petitioner was released on parole on October 13, 1978. It would seem that the petition is not moot since petitioner is currently on parole and subject to all of the restrictions and supervision normally demanded of parolees. In fact, if this action is dismissed as moot, petitioner will be subject to the supervision and custody of his parole officer until October 12, 1979. (Pen.Code, s 3000, subd. (a).) However, if petitioner should have been released from prison in September 1977, his parole would have terminated in September 1978. (See In re Haygood (1975) 14 Cal.3d 802, 122 Cal.Rptr. 760, 537 P.2d 880; People v. Amsbary (1975) 51 Cal.App.3d 75, 125 Cal.Rptr. 546; People v. Andre (1974) 37 Cal.App.3d 516, 112 Cal.Rptr. 438.)

2.  Hereinafter, all section references are to the California Administrative Code, title 15, unless otherwise indicated.

3.  Respondent directs our attention to the fact that the screening process consisted of several stages, each stage designed to selectively determine those ISL prisoners whose sentences should be enhanced and that from stage to stage the criteria varied. We have not sought to analyze the screening process beyond the first stage for the reason that a prisoner did not pass from the first stage to the second unless he “failed” the first. Thus, if petitioner passed to the second stage by reason of a constitutionally defective standard in the first stage, our inquiry can end at that point.

4.  The Adult Authority was abolished on July 1, 1977. Thus, there are and will continue to be prisoners who committed crimes prior to July 1, 1977 and were or will be sentenced under the ISL, but for whom, of course, no tentative parole date was or will be set because either they were received in prison before July 1, 1977, but too late to have the Adult Authority set a tentative parole date or because they were received in state prison after the Adult Authority went out of existence.

5.  Petitioner's Serious Offender Hearing took place on November 18, 1977. Ironically, section 2162, subdivision (b)(6) was deleted by the Community Release Board by amendment of section 2162 promulgated October 24, 1977, effective November 26, 1977.

6.  See In re Kapperman (1974) 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657, in which the court held that a statute which granted inmates credit against their prison terms for time spent in pretrial custody, but which only operated prospectively, denied equal protection to inmates convicted before the statute became effective. The court cited with approval an Illinois decision which held that a similar statute “was invalid as creating an arbitrary discrimination based upon the fortuitous circumstances of conviction date.” (At p. 547, fn. 6, 114 Cal.Rptr. at p. 100, 522 P.2d at p. 660.) Similarly, section 2162, subdivision (b)(6) operated to discriminate between inmates on the basis of the “fortuitous circumstances” of the assignment of an ISL tentative parole date.

7.  Government Code section 11374 provides:Whenever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.Any existing rules or regulations conflicting with this section are hereby repealed.

FEINBERG, Associate Justice.

WHITE, P. J., and PARRISH (Assigned by the Chairperson of the Judicial Council), J., concur.