IN RE: the Matter of Dennis STANWORTH (1981)

On appeal from an order granting a writ of habeas corpus, we consider whether constitutional principles mandate the establishment of a parole release date for a prisoner serving a life sentence under the Indeterminate Sentencing Law (ISL) and former administrative regulations in addition to parole release proceedings under the successor provisions of the Determinate Sentencing Law (DSL) and guidelines promulgated thereunder. We have concluded that on the facts and circumstances shown, neither equal protection nor ex post facto principles require such dual proceedings: accordingly, we reverse the judgment.

FACTS

The relevant facts are undisputed: In 1966, respondent Dennis Stanworth was sentenced to death following his plea of guilty to two counts of first degree murder (see former Pen.Code, s 190).¹

As a result of Witherspoon error (Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776), imposition of the death penalty was reversed while the underlying convictions were affirmed. (See People v. Stanworth (1969) 71 Cal.2d 820, 836, 842, 80 Cal.Rptr. 49, 457 P.2d 889.)² Following penalty retrial and reimposition of the death penalty, respondent's automatic appeal resulted in a sentence of life imprisonment under the mandate of People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880. (See People v. Stanworth (1974) 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 1058.)³ Thereafter, respondent's application for parole was denied on three successive occasions (1974, 1976 and April 1977)⁴ in proceedings conducted by the Adult Authority under the former ISL provisions and regulations. (See Pen.Code, former ss 3040-3042, 3046, 3052; see also Cal.Admin.Code., Tit. 15 former ss 2250-2304.⁵ ) In October 1977, a further parole hearing was conducted before the former Community Release Board (now Board of Prison Terms, hereafter appellant Board) under the newly-enacted DSL provisions and promulgated guidelines for determining parole release dates for life prisoners. (Pen.Code, s 3041; ss 2280-2292 passim.) Respondent was again found unsuitable for parole; a similar finding of unsuitability was made following the next parole hearing held in March of 1978 (s 2281). On March 21, 1979, respondent was found suitable for parole and the Board fixed petitioner's term of imprisonment at 301/2 years⁶ which, after allowance for post-conviction and pre-prison credits, resulted in an adjusted term of 23 years, 4 months and 9 days for a parole release date of April 16, 1990.

Thereafter, respondent initiated habeas proceedings below alleging that the establishment of his term of imprisonment under the DSL guidelines to the exclusion of previous ISL standards effectively denied him equal protection of the law (U.S.Const., 14th Amend.; Cal.Const., art. I, s 7) and constituted a violation of the ex post facto clause (U.S.Const., art. I, s 9, cl. 3; Cal.Const., art. I, s 9). The issue having been joined on the pleadings alone, the trial court sustained the petition and entered its order compelling the Board to reconsider respondent's term of imprisonment utilizing the former ISL guidelines and to fix the earlier of the two parole dates as the controlling parole date as provided by the guidelines. This appeal ensued.

I

Equal Protection

Renewing his equal protection argument below, respondent advances the following thesis in support of the challenged order: Section 2292⁷ establishes two sub-classes of the same class of life prisoners: those whose parole date was set under regulations prior to the effective date of the DSL guidelines and those whose were not. Under the provisions of sub-sections (a) and (c), prisoners in the former sub-class receive a parole release date based upon the shorter of the terms calculated under both ISL and DSL regulations; but the term of confinement for prisoners in the latter classification, including respondent, is calculated solely on the basis of the arguably less favorable DSL criteria. Thus, it is argued, the unequal treatment under section 2292 of the same class of life prisoners results in a denial of equal protection insofar as it deprives respondent and the members of his sub-class of the benefit of a parole hearing under the former ISL guidelines and a potentially earlier parole release date. (Cf. In re Henson (1981) 123 Cal.App.3d 518, 176 Cal.Rptr. 693; hearing den. 11/5/81 (equal protection violation found where ISL life prisoner never afforded a parole hearing under former guidelines).) Respondent's claim does not survive critical analysis.

We assume for sake of discussion that the nature of the liberty interest involved triggers review of the challenged classification under the test of strict scrutiny. (See People v. Olivas (1976) 17 Cal.3d 236, 243-245, 131 Cal.Rptr. 55, 551 P.2d 375; In re Henson, supra, 123 Cal.App.3d 518, 522, 176 Cal.Rptr. 693.) We further assume, arguendo, as respondent contends, that the focus of the former ISL criteria on the individual offender and his institutional behavior (see former ss 2350-2392, passim) as distinguished from the offense under relevant DSL criteria (see ss 2280-2292) arguably could have resulted in a lower or reduced base term.

At the outset we note that the mandated parole hearing procedures conducted by the Board serve a dual function: (1) determination of the prisoner's suitability for parole; and (2) establishment of the actual term of confinement. (ss 2281-2282; cf. former ss 2300, 2350.) A review of the record demonstrates that while respondent received periodic parole hearings under both the ISL and DSL guidelines, his suitability for parole was not determined until the March 1979 hearing resulting in a term of imprisonment and release date established under existing DSL criteria. Thus, unlike Henson, supra, respondent falls within the narrower class of previously sentenced life prisoners who received earlier parole hearings but were not found suitable for parole until after enactment of the new regulations. As the Attorney General correctly argues, all of the life prisoners falling within that group receive equal treatment under the same set of DSL guidelines in computing the actual period of confinement and parole release date. (See generally In re Eric J. (1979) 25 Cal.3d 522, 530-531, 159 Cal.Rptr. 317, 601 P.2d 549; In re Antazo (1970) 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999.) Accordingly, since respondent was neither in the same group or sub-class nor similarly situated to other life prisoners found suitable for parole under the former guidelines he was not constitutionally entitled to a redetermination under such former criteria for the purpose of computing a conceivably earlier release date.

II

Ex Post Facto

Respondent premises his ex post facto argument upon a claim that the ISL criteria and guidelines previously applied by the predecessor parole authority in setting parole release dates constitute the lawful standard of punishment applicable to his crimes, thus precluding retroactive application of legislative changes resulting in a more severe punishment or increased term of imprisonment. (See Love v. Fitzharris (9th Cir. 1972) 460 F.2d 382, vacated as moot in 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (retroactive administrative interpretation resulting in unfavorable change in parole eligibility of California prisoner prohibited under ex post facto clause); see also In re Bray (1979) 97 Cal.App.3d 506, 158 Cal.Rptr. 745 (retroactive application of statute extending parole period constitutes an ex post facto violation).) The underlying premise is flawed.

It has been long settled that changes in the law regarding punishment which provide a greater or more severe punishment than the law annexed to the crime when committed may not be retroactively applied under the constraint of the ex post facto clause. (Calder v. Bull (1798) 3 Dall. 386, 390, 3 U.S. 386, 390, 1 L.Ed. 648; In re Dewing (1977) 19 Cal.3d 54, 57, 136 Cal.Rptr. 708, 560 P.2d 375.) In determining whether such changes constitute ex post facto laws, the court looks to the “standard of punishment” prescribed rather than the sentence actually imposed.⁸ (Lindsey v. Washington (1937) 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182; cf. Dobbert v. Florida (1977) 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (no constitutional prohibition where measure of punishment unaffected by statutory change permitting advisory jury opinion in capital case).) But it has been consistently held that changes in administrative regulations or guidelines relating to the parole authority's discretion in establishing the period of confinement or determining parole suitability do not have the force and effect of laws subject to the ex post facto doctrine. (See, e.g., Zeidman v. U.S. Parole Com'n. (7th Cir. 1979) 593 F.2d 806 (change in administrative guidelines increasing recommended length of confinement); Shepard v. Taylor (2d Cir. 1977) 556 F.2d 648; Ruip v. United States (6th Cir. 1977) 555 F.2d 1331, 1335-1336; see also Rifai v. United States Parole Commission (9th Cir. 1978) 586 F.2d 695 (change in parole guidelines substituting severity of the offense in place of institutional behavior as primary consideration invulnerable to ex post facto challenge).) However, if the parole authority applies its parole guidelines in a “fixed and mechanical way,” such inflexible rule-making powers may be viewed as the equivalent of legislative enactment within the meaning of the ex post facto clause. (See Geraghty v. United States Parole Commission (3d Cir. 1978) 579 F.2d 238, 266, vacated on grounds of mootness (1980) 445 U.S. 388.)

Respondent's reliance on In re Stanley (1976) 54 Cal.App.3d 1030, 126 Cal.Rptr. 524 is misplaced. Although a prisoner's eligibility for parole constitutes an integral part of the legislative standard of punishment annexed to the crime when committed (id., at pp. 1042-1043, 126 Cal.Rptr. 524), the question of parole suitability is purely administrative in nature reflecting the individual offender's personal circumstances. Thus, while the predecessor Adult Authority was required to consider a broader range of criteria in fixing the ultimate term of imprisonment (id., at pp. 1037-1039, 126 Cal.Rptr. 524), the principal change in the new DSL guidelines under review focuses upon the gravity of the offense itself (s 2282, subd. (a)) empowering the Board to consider both aggravating and mitigating circumstances (ss 2283-2284) in selecting the base term of confinement from a matrix of available base terms for the crime of murder (14, 16, and 18 years; see s 2282, subds. (b) and (c)). Moreover, under the promulgated guidelines, the Board was free to select an entirely different base term if the individual circumstances so warranted (s 2282, subd. (a)).

Since the DSL guidelines in question are neither laws constituting an integral part of the standard of punishment annexed to respondent's crimes when committed, nor shown to have been inflexibly applied in a routine manner, we conclude that the individualized application of such guidelines in setting respondent's term of imprisonment and parole release date does not offend the ex post facto clause.

Judgment reversed.

FOOTNOTES

1.  Respondent also pled guilty to charges of aggravated and simple kidnapping, forcible rape, oral copulation and robbery. A sentence of life imprisonment without possibility of parole was imposed on the aggravated kidnapping (see former Pen.Code, s 209); execution of the indeterminate sentences on the remaining convictions was conditionally stayed.

2.  The death sentence was imposed for the murder of two teenage girls on August 1, 1966. A factual account of the several offenses may be found in People v. Stanworth, supra, 71 Cal.2d 820, at pages 823-827, 80 Cal.Rptr. 49, 457 P.2d 889, and need not be repeated herein.

3.  The conviction of aggravated kidnapping was reversed under the compulsion of People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225.

4.  The 1974 hearing resulted in a recommended three-year postponement due to the “extreme seriousness of the offense.” The 1976 parole denial was based upon additional findings of respondent's danger potential and concomitant need for an institutional setting and appropriate insight concerning his crimes.

5.  Unless otherwise indicated, all section references are to this title of the Administrative Code.

6.  The term was computed under the regulations applicable to lifers as follows: A base term of 17 years in view of the related aggravating circumstances (no relationship with victim; death due to severe trauma inflicted with deadly intensity; continuance of assault despite opportunity to cease) (see generally ss 2282-2284); two years enhancement for personal use of a firearm (s 2285); 111/2 years enhancement for other crimes (7 years for a life sentence on related murder conviction, 3 years for rape and 18 months for sex perversion) (s 2286).

7.  Section 2292 provides in pertinent part: “(a) General. All life prisoners heard after the effective date of these regulations shall be heard in accordance with this article. Prisoners who had a parole release date established under prior regulations shall retain the parole release date, as reduced by any appropriate postconviction credit under applicable rules. Such prisoners shall be released on the earlier of the two release dates. (P) (b) No Parole Date Was Set Prior to July 1, 1977. The hearing panel shall deny parole or set a parole date as provided in ss 2281-2290. (P) (c) Parole Date Was Set Prior to July 1, 1977. The hearing panel shall deny parole or set a parole date as provided in ss 2281-2290 as though no parole date had been set previously. If the parole date is earlier than a parole date set before the effective date of these regulations, the date set under these regulations is the controlling parole date. If the parole date is later than the previous date, the previous date is the controlling parole date.”

8.  At oral argument, the Attorney General properly conceded that respondent's ex post facto challenge may not be conditioned upon the existence of a vested right to parole (see Weaver v. Graham (1981) 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17).

RACANELLI, Presiding Justice.

NEWSOM and MARTIN,* JJ., concur.