Lawler, In re

• Decision Date: 25 January 1979
• Docket Number: Cr. 20522
• Citation: 151 Cal.Rptr. 833,23 Cal.3d 190,588 P.2d 1257
• Court: California Supreme Court
• Parties: , 588 P.2d 1257 In re Robert T. LAWLER on Habeas Corpus.

Page 833

151 Cal.Rptr. 833

23 Cal.3d 190, 588 P.2d 1257

In re Robert T. LAWLER on Habeas Corpus.

Cr. 20522.

Supreme Court of California, In Bank.

Jan. 25, 1979.

As Modified on Denial of Rehearing March 14, 1979.

Evelle J. Younger, Atty. Gen., Jack W. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Karl J. Phaler, Michael D. Wellington, Steven V. Adler, Gary W. Schons and Alan S. Meth, Deputy Attys. Gen., for appellant.

Appellate Defenders, Inc., under appointment by the Court of Appeal, and J. Perry Langford, San Diego, for respondent.

RICHARDSON, Justice.

Respondent, chairman of the Community Release Board (CRB), appeals from an order of the San Diego County Superior Court directing the CRB to strike from petitioner's prison term a one-year enhancement added pursuant to section 1170.2, subdivision (a), of the Penal Code. (All statutory references are to that code unless otherwise indicated.) The appeal is authorized by section 1506. As will appear, we have concluded that petitioner has failed to carry his burden of proving that the enhancement was improper. Accordingly, the order appealed from must be reversed with directions to dismiss the proceeding.

Petitioner Robert T. Lawler was convicted of first degree robbery (former § 211a) on his plea of guilty and under the previous Indeterminate Sentencing Law was sentenced to a prison term for an indefinite period. On December 2, 1977, after the operative date of the Determinate Sentencing Law of 1976 (DSL), the CRB, pursuant to section 1170.2, subdivision (a), calculated a determinate term of four years for petitioner, based on the newly enacted three-year middle term for robbery (§ 213), plus a one-year "enhancement." The document on which the term calculation was made, administratively denominated Form CDC 678, indicated that the reason for the enhancement was "weapons," and cited former section 3024, which specified the minimum sentence for certain armed offenders. It is undisputed, however, that the judgment of conviction did not include any express finding or recital that petitioner was armed within the meaning of section 3024.

On December 14, 1977, petitioner wrote to the sentencing court, enclosing a copy of the form on which his DSL term had been computed. The letter stated that petitioner's term had been refixed by the CRB to include the one-year enhancement for possessing a weapon provided for in section 3024; that the clerk of the court had advised him that the record did not reflect a section 3024 allegation or finding; and that his letter to the chairman of the CRB complaining about the enhancement had been to no avail. He then stated that he had already served the three-year base term and was being held only on the "violation" of section 3024, and requested that the court "officially notify the authorities here at Folsom prison and the Community Release Board as to what my legal standing is regarding any violation of pc 3024 . . . ." File stamps on the letter indicate that it was received by the court on January 4, 1978, was filed as a petition for writ of habeas corpus on January 5, and as such was granted on that date by issuance of an order directing that the CRB respond to the allegation of illegal detention set forth in the "petition."

The CRB's return to the court's order alleged that petitioner was in the lawful custody of the Department of Corrections following his conviction of first degree robbery and second degree burglary; that his term had been fixed under the DSL; that petitioner had not exhausted his administrative remedies; and that the records officer had mistakenly circled the number "3024" rather than "211" on Form CDC 678 in explaining the one-year weapons enhancement. (Armed robbery under former section 211a would have justified a one-year enhancement. (See §§ 1170.2, subd. (a), 12022, subd. (a).)) The accompanying memorandum of points and authorities contended (1) that the "petition" was defective in that it had not been verified as required by section 1474; (2) that the petition should be denied for failure of petitioner to exhaust his administrative remedies as required by In re Muszalski (1975) 52 Cal.App.3d 500, 125 Cal.Rptr. 281, and applicable CRB rules; (3) that since petitioner had been convicted of armed robbery the one-year enhancement was proper under section 1170.2, subdivision (a); and (4) the clerical error in designating section 3024, instead of section 211, on the CDC 678 form, was inconsequential.

No traverse was filed by petitioner. A hearing was held on February 7, 1978, but no testimony was offered. Counsel for respondent stipulated that petitioner's letter might be deemed a verified petition for writ of habeas corpus, and that petitioner had exhausted his administrative remedies since any further appeal would be futile. The parties placed in evidence the abstract of the judgment of conviction, documents establishing that petitioner had pursued an administrative appeal, additional DSL term computation documents, and the letter from the clerk of the court to petitioner stating that no section 3024 allegation was found in the record.

After argument by counsel the court ruled that the enhancement was improper because the sentencing court had not added any enhancement "with respect to this 211a, but on the definition of 211a as it was then in the code, fixed the sentence at five years to life." It also ruled that the enhancement could not be justified under either subdivision (a) or (b) of section 12022, since there was no proof respecting the elements necessary under those provisions to permit an enhancement. Finally, the court ruled that application of any of those provisions to add a one-year enhancement to petitioner's term would constitute an impermissible ex post facto application of the law, and ordered the enhancement stricken.

As will appear, the trial court's order must be reversed, because petitioner failed to establish any basis for relief in habeas corpus. In a habeas corpus proceeding the petition itself serves a limited function. It must allege unlawful restraint, name the person by whom the petitioner is so restrained, and specify the facts on which he bases his claim that the restraint is unlawful. (§ 1474.) If, taking the facts alleged as true, the petitioner has established a prima facie case for relief on habeas corpus, then an order to show cause should issue. (In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4, 87 Cal.Rptr. 681, 471 P.2d 1.) We have previously observed that the order to show cause, although not expressly provided for in the statutes governing the writ, has developed as an appropriate means by which to initiate a hearing and disposition of a petition on behalf of a person in custody without the necessity of bringing the petitioner before the court. (id. at p. 873, fn. 2, 87...