IN RE: Gregory Ulas POWELL (1984)

This is an appeal from an order granting a petition for writ of habeas corpus and directing the Board of Prison Terms (BPT or board) to set aside its order rescinding respondent Gregory Powell's parole date, and to release respondent on parole.

I

Respondent was convicted and sentenced to death for the 1963 murder of a Los Angeles police officer.   After this conviction was reversed, he was retried and again convicted and sentenced to death;  that sentence was modified to life imprisonment.  (See People v. Powell (1967) 67 Cal.2d 32, 59 Cal.Rptr. 817, 429 P.2d 137;  People v. Powell (1974) 40 Cal.App.3d 107, 115 Cal.Rptr. 109.)   The crime and the trials are the subject of a book entitled The Onion Field, by Joseph Wambaugh.

On October 12, 1977, a panel of the Community Release Board (CRB), a predecessor of the BPT, conducted a parole consideration hearing for respondent, and granted a June 1983 parole release date.   A second parole consideration hearing was held on April 18, 1979, to consider respondent's suitability for parole under revised procedures enacted by the Legislature.   Present at that hearing was a representative of the Los Angeles County District Attorney's office, who expressed that office's opposition to any advance of respondent's release date.¹  The panel again found respondent suitable for parole, and gave him a 1986 release date.   Since the earlier of the two dates was controlling, his release date remained that set by the first panel.   After progress hearings in 1979 and 1980, that date was advanced to June 13, 1982.

In April 1980, respondent was evaluated by a correctional counselor at the California Medical Facility at Vacaville, shortly after his transfer there from San Quentin.   In contrast to earlier, favorable psychiatric reports, the counselor's report was somewhat tentative and cautious, stating inter alia that respondent's “antisocial personality” was “seemingly improved,” and that he “appears to be improved but it seems that his behavior could be unpredictable in a stressful situation.”   In response to that report, a scheduled progress hearing was postponed, to obtain additional psychiatric information.   Psychiatrist Wilson Yandell, M.D., then interviewed respondent.   His report, dated January 19, 1982, suggested that respondent's diagnosis be changed from sociopathic personality to “borderline personality disorder,” and listed features of that disorder demonstrated by respondent:  impulsivity and unpredictability with potentially self-damaging acts, unstable interpersonal relationships, inappropriate intense anger and loss of control, identity disturbance, and affective instability.   However, from Yandell's review of respondent's record, he concluded that respondent had “psychiatrically improved greatly.”   In response to the board's specific questions to him about respondent's “potential for violence in a free community,” Yandell first noted psychiatrists' poor record in predicting violence.   Nevertheless, he enumerated conditions mitigating against the likelihood of future violence by respondent:  (1) his “[p]rolonged confrontation with the consequences of past violence and sustained demonstration of a capacity for self-discipline;  ․” (2) a strong support system including meaningful relationships to significant others;  and (3) plans for a structured lifestyle for organization of his time and energy.   Yandell noted that the breakdown of the last two factors would place stressful demands on respondent, as it would on others, but emphasized that his report was intended to support parole and release.

In February 1982, at the conclusion of a progress hearing attended by a representative of the Los Angeles District Attorney's office, the panel announced its intention to schedule a rescission hearing, to consider:  (1) respondent's violence potential should he be released, in light of conflicting perspectives about his ability to control himself under stress;  (2) information from the Los Angeles District Attorney's office about respondent's attempted escapes from Death Row in 1967 and from the Los Angeles County jail in 1967, 1968, and 1969;  (3) allegations of sexual misconduct in the San Quentin prison visiting room in 1978;  (4) opposition to parole by the Los Angeles County District Attorney's office;  and (5) a resolution by that county's Board of Supervisors opposing parole.

The rescission hearing commenced on April 27, 1982.   The presiding officer announced the scope of the hearing:  (1) psychiatric evaluations as to respondent's violence potential if released;  (2) allegations of five attempted escapes or escape-related incidents between 1967 and 1969;  (3) an allegation of sexual misconduct on August 30, 1978;  and (4) a second allegation of misconduct in mid-1978, made by a Mr. Gravitt.

The BPT panel had before it a report from the Northern Parole Outpatient Clinic (NPOC) signed by Chief Psychiatrist Diane Sutton, M.D.   According to the report, the clinic staff unanimously concluded that questions remained about respondent's ability to adjust successfully on parole and to refrain from violent acts and a criminal life style.   Although the respondent had made some improvement in the institutional setting in the past several years, the staff believed that improvement might well be superficial and “not likely to hold once he is released from confinement.”

The staff expressed concern about two relatively recent incidents of “unusual or bizarre sexual activity”:  a 1978 incident in which Correctional Officer Gravitt allegedly observed respondent and his 15- or 16-year-old daughter in some apparent improper sexual activity, in the presence of his wife and stepson, and a second incident during which respondent sustained an injury to his prostate during a family visit.   The staff was also troubled by respondent's plans to make a living in the dog grooming business upon his release, and noted that no such business now exists, and that respondent had no training or experience in the field.   In addition, respondent had not received any other vocational training, and had very little job experience outside of prison.   The report also states that much of respondent's early life was characterized by antisocial behavior often of a very impulsive nature;  and it points out that there is some question that he sustained brain damage years ago, with no follow-up on this since 1964.   The report states that generally brain damage serves to lower inhibitions to impulsive behavior, especially when the person is intoxicated.   The staff recommended extensive psychological testing to evaluate the risks in releasing him and the improvement that may have occurred, and a neurological evaluation to determine presence of brain atrophy or other abnormalities.

Dr. Sutton testified at the hearing, explaining that the NPOC staff consisted of six psychiatrists and five psychologists, who reviewed the Cumulative Summary of respondent's extensive case file.   One of those staff members interviewed respondent at least briefly.

The BPT panel also received a report prepared by Dr. Edward South, and others, and heard Dr. South testify, and received the Yandell report.   The South report, based on a review of psychiatric information in respondent's files and an interview of respondent, was generally favorable and did not find sufficient psychiatric data to recommend against parole.   South was of the opinion that if there had been any change in respondent's violence potential, it was a decrease.

The panel also reviewed transcripts of the 1977 and 1979 hearings.   Despite the information apparently in the file, neither hearing refers to the jail escape incidents.   Both the 1977 and 1979 transcripts include a brief reference to the 1967 prison escape attempt.

The panel also had before it a report from the BPT investigator, detailing inter alia (1) respondent's 1967 escape attempt from San Quentin's Death Row;  (2) a 1968 attempt to smuggle guns to respondent, then in Los Angeles County jail;  (3) respondent's attempted escape from that jail in April 1969, and (4) an escape plan involving respondent and reported to jail officials in October 1969.   According to the investigator, information about all those incidents except the April 1969 incident were in respondent's file.

The panel ordered rescission of respondent's release date for two reasons:  (1) sufficient doubt had been raised regarding his ability to refrain from further violent acts;  and (2) the 1977 and 1979 hearing panels committed fundamental error resulting in the improvident granting of parole dates.   The latter reason was based on the board's determination that the transcript of the earlier hearings contain no substantive evidence that the panel “considered, weighed, or evaluated” the escape incidents in arriving at their finding of parole suitability.   The board did not rely on the allegations of sexual misconduct, and specifically “dismissed” those issues.

After an unsuccessful administrative appeal, respondent petitioned for writ of habeas corpus.   The trial court concluded that there was no good cause for rescission, and granted the writ.   First, the court reasoned that the Sutton report was entitled to no weight whatsoever, primarily because it relied on unproven charges of sexual misconduct, which the panel was constitutionally prohibited from considering.   The court also questioned the reliability of that report because it was prepared when public outcry against respondent's release was “overwhelming,” and noted that all other psychiatric reports supported respondent's release.   Next, the court stated that the 1977 and 1979 panels had full reports before them about respondent's attempted escapes, and rejected the board's conclusion that those panels committed any “fundamental error” with respect to those incidents.   The court also concluded that the board failed to give enough emphasis to respondent's satisfactory prison conduct.   Finally, it expressed grave concern that the public outcry against respondent's release had “played a part in the board's decision.”   This court has stayed respondent's release.

II

It is apparent from the trial court's order that it reweighed the evidence before the board.   Appellant contends that the court thereby erroneously usurped the fact-finding power of the board.   We agree.

The BPT is the administrative agency authorized to grant parole and fix release dates.  (Pen.Code, §§ 5075 et seq.;  3040 et seq.;  In re Fain (1976) 65 Cal.App.3d 376, 389, 135 Cal.Rptr. 543 (Fain I);  In re Schoengarth (1967) 66 Cal.2d 295, 304, 57 Cal.Rptr. 600, 425 P.2d 200.) ²  Among the board's powers is the authority to rescind a parole date, for cause.  (Fain I, supra, 65 Cal.App.3d at pp. 388–394, 135 Cal.Rptr. 543;  In re Fain (1983) 139 Cal.App.3d 295, 302, 188 Cal.Rptr. 653 (Fain II);  see Pen.Code, §§ 3041.5, 3041.7.)   The power to rescind is also expressly spelled out in the board's rules, section 2450 of which states that a parole date may be postponed or rescinded “for good cause” at a rescission hearing.  (Cal.Admin.Code, tit. 15, § 2450.)

The Fain I court commented that cause for rescission may exist if the authority reasonably determines, in its discretion, that parole was “improvidently granted” under the circumstances which “appeared [when parole was initially granted] and which may have appeared since.”  (Fain I, supra, 65 Cal.App.3d at p. 394, 135 Cal.Rptr. 543.)   However, as the board's power to rescind rather than the existence of cause for rescission was at issue in that case, it is of limited assistance in clarifying precisely when rescission is proper.   The board's rules provide more specific guidance.   Section 2451 of those rules enumerates matters which must be reported to the board, which may result in rescission proceedings, and which are grounds for rescission.   (Cal.Admin.Code, tit. 15, § 2451;  see Fain II, supra, 139 Cal.App.3d at p. 304, 188 Cal.Rptr. 653;  cf. Fain I, supra, 65 Cal.App.3d at pp. 392–394, 135 Cal.Rptr. 543.)   Subdivision (a) of section 2451 lists assorted disciplinary conduct, i.e., assault with a weapon, escape, physically assaultive behavior, or attempted escape.   Subdivision (b) specifies:  “Psychiatric Deterioration.   Any prisoner whose mental state deteriorates to the point where there is a substantial likelihood that the prisoner would pose a danger to himself or others when released ․”  Finally, subdivision (c) sets forth a broad category, encompassing “Any new information which indicates that parole should not occur.   Examples include:  an inability to meet a special condition of parole ․;  information significant to the original grant of parole was fraudulently withheld from the board;  or fundamental errors occurred resulting in the improvident granting of a parole date.”  (Cal.Admin.Code, tit. 15, § 2451.)   Section 2000, subdivision (b), defines “good cause” as “[a] finding by the board based upon a preponderance of the evidence that there is a factual basis and good reason for the decision made.”  (Id., § 2000, subd. (b).)

 The discretion of the BPT and its predecessors in parole matters has been described as “great” and “almost unlimited.”  “The exercise of this discretion involves the deliberate assessment of a wide array of individualized factors on a case-by-case basis, and the striking of a balance between the interests of the inmate and of the public.  [Citation.]”  (Fain I, supra, 65 Cal.App.3d at p. 389, 135 Cal.Rptr. 543.)

 Although broad, the board's discretion is not absolute.   That discretion, including the discretion to determine whether a parole date should be rescinded, is subject to the prisoner's right to procedural due process.  (In re Prewitt (1972) 8 Cal.3d 470, 474, 105 Cal.Rptr. 318, 503 P.2d 1326;  Fain I, supra, 65 Cal.App.3d at p. 394, 135 Cal.Rptr. 543.)   The board's decision must have a factual basis, and may not be based upon a “whim, caprice, or rumor.”  (See In re McLain (1960) 55 Cal.2d 78, 87, 9 Cal.Rptr. 824, 357 P.2d 1080.)   Moreover, although public outcry may properly serve to trigger reconsideration of a parole-granting decision and an inquiry as to whether the decision was an abuse of discretion, the board may not rely solely on public outrage to rescind parole.  (Fain II, supra, 139 Cal.App.3d at p. 310, 188 Cal.Rptr. 653.)   Nevertheless, the resolution of conflicting evidence in hearings before it is a matter for the board.  (In re Carroll (1978) 80 Cal.App.3d 22, 31, 145 Cal.Rptr. 334.)

 Habeas corpus is a proper remedy to test the propriety of proceedings before the board.  (In re Streeter (1967) 66 Cal.2d 47, 49, 56 Cal.Rptr. 824, 423 P.2d 976.)   In habeas proceedings generally, the order to show cause hearing is a proceeding in which issues of fact bearing on petitioner's claim to relief are to be decided.  (See generally In re Hochberg (1970) 2 Cal.3d 870, 873–876, fns. 2, 4, 87 Cal.Rptr. 681, 471 P.2d 1;  In re Branch (1969) 70 Cal.2d 200, 203, 74 Cal.Rptr. 238, 449 P.2d 174.)   Nevertheless, habeas proceedings attacking a parole revocation do not provide a de novo review of the board's determination of cause on disputed facts, with the court reweighing all the evidence before the board on that question.   In In re Carroll, supra, 80 Cal.App.3d 22, 145 Cal.Rptr. 334, for example, parole was revoked after a revocation hearing at which the evidence was in conflict as to whether the parolee had committed a burglary.   He challenged the revocation by habeas petition to the Supreme Court, which issued an order to show cause returnable to the appellate court.   That court stated that the resolution of the conflict was for the board, and concluded that the evidence supported its findings.  (Id., at pp. 29–31, 145 Cal.Rptr. 334;  see also In re Gomez (1966) 64 Cal.2d 591, 51 Cal.Rptr. 97, 414 P.2d 33 [habeas proceedings before Supreme Court challenging parole revocation;  court appoints referee to determine whether petitioner's confession voluntary and adopts referee's findings of voluntariness, but states that resolution of conflicting evidence before board was for that authority];  cf. In re Tucker (1971) 5 Cal.3d 171, 95 Cal.Rptr. 761, 486 P.2d 657 [petitioner challenges parole revocation, alleging that sole evidence before board was his involuntary confession;  People dispute claim of involuntariness;  referee appointed to make finding on that factual issue].)   The fact that this case involves rescission rather than revocation should not alter the respective roles of the board and the court which reviews the board's decision.   As the Supreme Court pointed out in another context, there is “no significant distinction between the deprivation of the right to conditional liberty enjoyed by a parolee after release and the deprivation of the right to achieve such liberty after a grant thereof but before the date fixed for release.”  (In re Prewitt, supra, 8 Cal.3d at p. 474, 105 Cal.Rptr. 318, 503 P.2d 1326.)

 Accordingly, we conclude that it was for the board to resolve conflicts in and determine what weight should be given to the evidence before it, and the trial court erred when it reweighed the evidence.

Respondent's argument to the contrary is unpersuasive.   Respondent draws an analogy to the standard of review in administrative mandamus actions, in which the trial court must exercise its independent judgment on the evidence when an administrative decision has affected a vested right.  (See, e.g., Bixby v. Pierno (1971) 4 Cal.3d 130, 144–146, 93 Cal.Rptr. 234, 481 P.2d 242.)   The fatal flaw in the analogy is that a prison inmate has no vested right in his or her prospective liberty on a parole release date.  (Fain I, supra, 65 Cal.App.3d at p. 390, 135 Cal.Rptr. 543.)

At oral argument, respondent urged that Fain I predated the enactment of the Uniform Determinate Sentencing Act of 1976, and that the Legislature has now somehow elevated an inmate's entitlement to prospective liberty on a parole release date to a vested right.   The argument is without merit, as it assumes that when Fain I was decided, the board had absolutely unbridled discretion to rescind a parole date.   However, when that case was decided, as now, the board had discretion to rescind a parole date for cause, and administrative regulations set out grounds for rescission.  (See Fain I, supra, 65 Cal.App.3d at pp. 392–393, fn. 13, 135 Cal.Rptr. 543.)

We consider, then, whether the evidence before the board supports its determination that doubt had been raised about respondent's ability to refrain from further violent acts if released.

In making that determination, the board relied primarily on the report of the Northern Parole Outpatient Clinic and the testimony of its chief psychiatrist Sutton.   The conclusions of the report were based in part on an assumption that the allegation of sexual misconduct in the Gravitt letter was true.   Primarily because of its reference to that letter, the trial court concluded that the report was entitled to no weight at all.

 It is unquestionable that the board could not have based its rescission on the allegation contained in that letter without giving respondent an opportunity to confront and cross-examine adverse witnesses.³  (See Morrissey v. Brewer (1972) 408 U.S. 471, 488–489, 92 S.Ct. 2593, 2603–2604, 33 L.Ed.2d 484;  In re Prewitt, supra, 8 Cal.3d at pp. 473–474, 105 Cal.Rptr. 318, 503 P.2d 1326.)   In fact, the board did not rely on that accusation as a basis for rescission;  instead, it “dismissed” that issue.

 Urging that the NPOC staff could still consider the Gravitt letter, appellant relies on the rule of evidence that an expert may rely on inadmissible matters in reaching his or her opinions (Evid.Code, § 801, subd. (b)).  In reply, respondent points out the exception to that rule, i.e., “unless precluded by law from using such matter as a basis for his [or her] opinion.”  (Ibid.)  If we assume arguendo that the rules of evidence were applicable in these proceedings and that the Gravitt allegation was an improper basis for the staff's opinion, it does not follow that the board was required to disregard the entire staff report.

 While a court may exclude testimony in the form of an opinion based in whole or significant part on matter that is not a proper basis for such an opinion, it is not required to do so absent an objection and request to strike.  (Evid.Code, § 803.)   At the hearing before the board, respondent made no such objection to the Sutton/NPOC report or to Sutton's testimony.

Furthermore, the NPOC staff's conclusions were not based solely on the Gravitt letter.   The report also expressed concern about the uncertainty of respondent's future plans, and his lack of vocational training or job experience.   In addition, the report noted his early lack of impulse control, and that after 1964, there was no follow-up of an early diagnosis of brain damage.   When Dr. Sutton testified about the staff's concerns, she acknowledged that had the sexual incidents not occurred, the staff would have had “a more confident view of the influence that [respondent's] family would have over him.”   However, she did not testify that the staff would then have concluded that respondent was likely to succeed on parole.

 In sum, while the evidence was unquestionably in conflict, the resolution of that conflict and the weight to be given the evidence was for the board.   Therefore, we conclude that the evidence supported the board's finding that a substantial likelihood existed that respondent would pose a danger to others if released.   The board's determination had a factual basis, and was not based on whim or caprice.   As the board's findings were supported by the evidence, it did not abuse its discretion when it rescinded respondent's parole date for that reason.⁴

III

As a separate ground for rescission, the board found that the 1977 and 1979 hearing panels committed “fundamental error resulting in the improvident granting of parole dates.”   As already mentioned, the board stated that there was no evidence that prior panels had “considered, weighed, or evaluated” respondent's attempts to escape from state prison and Los Angeles County jail in 1967, 1968, and 1969.   Appellant contends the trial court erred when it rejected the board's determination and argues that the 1977 and 1979 panels were not aware of all of respondent's attempted escapes.   Amicus, the Los Angeles County District Attorney's office, urges that even if both panels were aware of and considered those attempts before granting a parole release date, the 1982 panel was entitled to reevaluate that information and conclude that parole was improvidently granted.

Respondent urges that evidence of those escapes and references to his “escape history” were before both those panels, and that the panels were not required to read into the record all of the evidence which they considered in the decision-making process.   Respondent urges that a parole date cannot be rescinded merely because a new panel disagrees with the significance given certain evidence by a prior panel.

It does appear that while respondent's central file included documents referring generally to his escape history and specifically to the 1967 attempted escape from San Quentin, the 1968 gun smuggling incident at Los Angeles County jail, and the October 1969 planned escape from that jail, the file did not contain specific information about the April 1969 attempted escape from jail.   Therefore, the trial court's conclusion that the 1977 and 1979 panels had “full reports” before them about respondent's attempted escapes is inaccurate, at least to some extent.   As appellant points out, those panels could not have “considered, weighed, or evaluated” specific events of which they were unaware.   Nevertheless, we need not decide whether this omitted information resulted in the “improvident granting” of a parole date, in light of our conclusion that the first ground upon which the board relied justified its rescission decision.

 As for the other escape attempts and related incidents, it is well settled that in the absence of a showing that an administrative board has not read, or was not familiar with, the evidence adduced at a hearing, the law presumes that the decision of the board was made after consideration of the evidence.  (Steiger v. Board of Supervisors (1956) 143 Cal.App.2d 352, 359, 300 P.2d 210.)   We recognize that the board has broad power to reconsider its actions, including the power to perceive and correct its own mistakes in granting parole.  (See Fain I, supra, 65 Cal.App.3d at pp. 389–394, 135 Cal.Rptr. 543.)   As we have discussed, the grounds for rescission are numerous and varied, and the grounds set forth in the board's rules are nonexclusive.  (Cf. id., at p. 393, 135 Cal.Rptr. 543.)   However, we cannot agree with amicus that a second panel may conclude that a prior panel committed “fundamental error” within the meaning of section 2451, subdivision (c), solely because it disagrees with the weight given to certain evidence by that first panel.   Were we to adopt amicus' position, the setting of a parole release date would be a meaningless act.

 Finally, we address the trial court's concern that public outcry played a part in the board's decision.   As the court explained in Fain II, supra, 139 Cal.App.3d 295, 188 Cal.Rptr. 653, public outcry may serve to trigger reconsideration of a parole-granting decision, although it cannot be the reason for a rescission decision.  (Id., at p. 310, 188 Cal.Rptr. 653.)   Unlike the record in Fain II, the record in this case does not establish that rescission was based on public outcry.   Moreover, the constitutional doctrine of separation of powers precludes judicial inquiry into the motivation or mental processes which may underlie action by a nonjudicial agency of government.  (Fain I, supra, 65 Cal.App.3d at p. 393, fn. 14, 135 Cal.Rptr. 543.)

The order is reversed and remanded with directions to deny the writ of habeas corpus.

FOOTNOTES

1.   Amicus briefs in support of appellant have been filed by the office of the District Attorney of Los Angeles County and the Citizens for Truth, Inc.

2.   The BPT assumed all the powers and duties of its predecessors, the Adult Authority and the Community Release Board.  (See Pen.Code, § 5078, subd. (a).)

3.   Correctional Officer Gravitt never reported the incident as a “rule violation,” and no disciplinary hearing was ever held on the charge.  (See Cal.Admin.Code, tit. 15, § 3312 et seq.)   The reference in respondent's file to the accusation had been removed.

4.   In a petition for rehearing, respondent points out that although he did not object to the Sutton/NPOC report or Dr. Sutton's testimony at the rescission hearing, he did raise the issue in a written brief in his administrative appeal.   He also urges that if counsel waived his objection by failing to raise it at the hearing itself, he was incompetent.   However, respondent mistakenly assumes that had such an objection been made at the hearing, the report would have been stricken in its entirety.   Such is not the case.  Evidence Code section 803, upon which respondent himself relies, expressly provides that “․ the witness may, if there remains a proper basis for his opinion, then state his opinion after excluding from consideration the matter determined to be improper.

SCOTT, Associate Justice.

WHITE, P.J., and BARRY–DEAL, J., concur.