11 Cal.3d 258, 16799, In re Sturm

Docket Nº:16799
Citation:11 Cal.3d 258, 113 Cal.Rptr. 361, 521 P.2d 97
Opinion Judge:[10] Wright
Party Name:In re Sturm
Attorney:[6] W. D. Milligan for Petitioner. [7] Charles C. Marson, Joseph Remcho, Peter E. Sheehan and Alice Daniel as Amici Curiae on behalf of Petitioner. [8] Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier, Assistant Attorney General, Harley D....
Case Date:April 18, 1974
Court:Supreme Court of California

Page 258

11 Cal.3d 258

113 Cal.Rptr. 361, 521 P.2d 97

In re Robert STURM on Habeas Corpus.

Cr. 16799.

Supreme Court of California

April 18, 1974.

In Bank

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[Copyrighted Material Omitted]

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W. D. Milligan, San Diego, for petitioner.

Charles C. Marson, Joseph Remcho, Peter E. Sheehan, and Alice Daniel, San Francisco, as amici curiae on behalf of petitioner.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Harley D. Mayfield and Karl J. Phaler, Deputy Attys. Gen., for respondent.

WRIGHT, Chief Justice.

We issued an order to show cause in response to the application of Robert Sturm for a writ of habeas corpus on allegations that the Adult Authority (Authority) denied petitioner due process of law in that it acted irresponsibly in first denying him parole and then refusing to communicate to him the reasons for the denial. We conclude that there has been a denial of due process. As the petitioner is presently on parole, the order to show cause is discharged and the petition for the writ is denied.

Almost a quarter century ago, petitioner and James McKay, who were then juveniles 18 and 19 years of age respectively, were convicted of murdering two deputy sheriffs (Pen.Code, §§ 187, 190) 1 who were returning

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the juveniles to California from the State of Washington after escape from a Youth Authority camp in Shasta County. Following a retrial which took place in Tehama County because of popular prejudice against them in Shasta County (People v. McKay (1951), 37 Cal.2d 792), defendants were convicted a second time and were sentenced to life imprisonment. Immediately thereafter the trial judge and district attorney filed with the Authority a statement regarding length of sentence and granting of parole pursuant to section 1203.01. The statement not only recounted that the jury had returned its verdict with the express declaration that the defendants be imprisoned without parole, but also concurred in that view by cautioning that the defendants would 'as long as they live be a menace to society and should be incarcerated.' Additionally, the statement expressed an opinion drawn from the trial evidence that petitioner, 'was the more alert of the two, and probably the leader in the plan to escape' even though the evidence showed that 'defendant, James McKay, fired all the shots in the killing . . ..' 2

Petitioner was committed to the Department of Corrections on February 26, 1952. He remained incarcerated for the next 22 years in various institutions, including those at Folsom, San Quentin, Vacaville, and Chino. 3 It appears from records of those institutions that petitioner's adjustment to custody was turbulent. During the first 11 years in prison he engaged in a series of serious disciplinary infractions--including fighting with other inmates, pilfering other inmates' belongings, destroying prison property, and refusing to obey guards--which resulted in confinement in isolation or maximum custody on several occasions. Furthermore, correctional counselors believed at the time that petitioner had almost no insight into the nature of his offense or concern about his future, and he was often observed to be in a state of chronic depression. This behavior, however, appears to have ceased in 1963 when he was disciplined for the last time. Petitioner has since refrained from committing infractions and has conducted himself in a manner which unquestionably has been exemplary. He has earned a high school diploma, successfully completed additional training to be an office machine repairman, and performed above-average work

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on institutional job assignments. His improvement in his conduct has been accompanied by increasing insight into the nature and consequences of his offense. At the same time, the psychiatric evaluation of petitioner's propensity for violence has changed from one of great social hostility to 'no suggestion of hostility or aggressive thinking.'

Throughout this maturation, petitioner has appeared annually before the Authority to receive consideration of his applications for parole. These parole release hearings appear to have been conducted in accordance with the Authority's usual procedures. (See In re Tucker (1971), 5 Cal.3d 171, 184--188, 95 Cal.Rptr. 761 (separate opinion by Tobriner, J.).) 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. (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, 372--373 (hereinafter referred to as Administrative Sentencing.).) 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 intherview 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. 4 (Cal.Criminal Practice (Cont.Ed.Bar) pp. 577--578 (hereinafter referred to as Criminal Practice).) 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. (See Testimony of Louis S. Nelson, Warden in Hearings Before the Cal. Assem. Crim. Procedures Committee (Nov. 13--14, 1968) at p. 357.)

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In petitioner's case the hearings consistently resulted in parole denials. Prior to 1970, the denials show some recognition of petitioner's behavioral progress in periodic recommendations advising gradual reductions in his custodial status. The records are otherwise entirely cryptic and contain no unequivocal reasons for the Authority's action. Aside from a brief notation in 1967 that 'time is the only factor' and an equivocal notation in 1968 that other factors were involved in petitioner's case, no specific grounds for denial are set forth. 5

Although the precise rationale for parole denial thus is not apparent the records do provide a useful summary of information which was at the panel's disposal in considering the parole applications. In the Authority's earlier evaluations (1961--1965) references to petitioner's apathy and need for vocational training reflect that the panel was well informed of his institutional conduct and attitude toward reform. Similarly, later assessments (1965--1970) indicate the Authority's awareness of petitioner's improvement in conduct by repeated references to his developing skill as a machine repairman and his gradual acceptance of responsibility for a serious crime. The minutes of the meetings also disclose that the Authority considered certain letters concerning the petitioner's capacity for a successful parole. These included an annual letter from a judge of the Superior Court of Shasta County which opposed parole because petitioner had committed 'the most aggravated crime of this generation in this county,' letters on two occasions from the chief of police in Red Bluff advising against parole for the reason that the jury's choice of life imprisonment over the death penalty partially rested on an expectation that parole would be precluded, and a letter in another year from petitioner's sister advocating his release. The Authority also became aware during the latter part of the 1960's that petitioner would have a home with his aunt and uncle upon release.

In 1970 began the series of en banc parole release hearings with which this petition is principally concerned. Records of parole denials in 1970 and 1971 show that the Authority considered petitioner's completion of trade and high school education, his good conduct, and the fact that no letters favoring or opposing parole were on file. Brief notations in both years also reflect that the Authority discussed the seriousness of petitioner's offense, which panel members viewed as having an 'undisputed element of premeditation.' There is also some reference in the minutes to the fact that petitioner had been the leader during the course of criminal conduct. Petitioner wrote to the chairman of the Authority after the 1970 and 1971

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dispositions seeking reasons for the denials so that he could be guided in his future conduct. The chairman's response in mid-1971 stated no specific reason for denial of parole, but instead explained in general language that the Authority's decisions were customarily based upon 'innumerable factors involving the rehabilitation of the individual and the safety of society.' 6

At the en banc hearing in 1972 parole was again denied. Discussion apparently centered on the basic facts taken into consideration the previous two years. 7 Immediately thereafter petitioner applied for review of the decision by another Authority panel on grounds that the denial had...

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