Carroll, In re

• Decision Date: 19 April 1978
• Docket Number: Cr. 17293
• Citation: 145 Cal.Rptr. 334,80 Cal.App.3d 22
• Court: California Court of Appeals Court of Appeals
• Parties: In re Alfonso CARROLL, on habeas corpus.

Page 334

145 Cal.Rptr. 334

80 Cal.App.3d 22

In re Alfonso CARROLL, on habeas corpus.

Cr. 17293.

Court of Appeal, First District, Division 1, California.

April 19, 1978.

Hearing Denied June 15, 1978.

Rowan K. Klein, Beverly Hills, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Franklin D. Elia, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, ^* Associate Justice.

By his petition for habeas corpus petitioner seeks review of proceedings in which his parole was revoked and he was ordered returned to prison. He claims he was not afforded a revocation hearing that comported with due process of law because he was denied the right to confront and cross-examine adverse witnesses. We conclude that his revocation hearing comported with due process of law and that the order revoking his parole was sustained by sufficient evidence. The failure to produce the victim of the petitioner's alleged illegal entry and assault, so that petitioner could confront and cross-examine her, was excused because her disappearance furnished good cause and her prior statements were adequately corroborated. The failure to produce a second witness occasioned no denial of due process or prejudicial error because it is questionable whether he was adverse to the petitioner, as distinguished from the latter's companion, because he was not expressly requested as a witness for petitioner, and because there is a failure to show any prejudice from his absence or from the use of his statement. The failure to produce a third witness, who was in no sense an adverse witness created no denial of due process or prejudicial error in the absence of any showing his whereabouts was not equally available to petitioner, and in the absence of any suggestion as to what his testimony would be.

Because of a suggestion that there was no error because the Adult Authority had no power to issue subpoenas for witnesses at parole revocation hearings, we examine that question and conclude that such power is conferred by provisions of the Government and Penal Codes.

On November 2, 1970, petitioner was convicted of two counts of first degree robbery in violation of Penal Code section 211, and one count of rape by threats of great and immediate bodily harm in violation of then subdivision 4 (since November 23, 1970, subdivision 3) of section 261. At the time he also was charged with and admitted a prior conviction of grand theft in violation of subdivision 3 of section 487. He was sentenced from five years to life for each of the two robbery convictions, which were to run concurrently, and from three years to life for the rape conviction, which was to run consecutively with the robbery convictions.

On August 7, 1975, he was paroled. On January 19, 1976, he was arrested in Los Angeles for alleged breaking and entering and assault. Four days later, when the parole authorities were notified of his arrest, a hold was placed against petitioner, and he was interviewed and served with notice of the Adult Authority's suspension of his parole. On the same day, January 23, 1976, he was arraigned and a preliminary hearing was set for February 4, 1976. On that date the prosecutor dismissed the charges because of the failure of a material witness, the alleged victim, to appear at the hearing.

A parole violation report was prepared charging petitioner with violating the conditions of his parole (1) by entering into a residence without obtaining the permission of the occupant, (2) by choking and hitting one of the occupants with a chain, and (3) by his failure to register as required by section 290 of the Penal Code. Petitioner denied the charges and requested and was granted permission to have counsel present at the parole revocation hearing. (See Gagnon v. Scarpelli (1973) 411 U.S. 778, 787-791, 93 S.Ct. 1756, 36 L.Ed.2d 656; Gee v. Brown (1975) 14 Cal.3d 571, 574-576, 122 Cal.Rptr. 231, 536 P.2d 1017; and In re Love (1974) 11 Cal.3d 179, 185-186, 113 Cal.Rptr. 89, 520 P.2d 713.) He requested the presence as witnesses of a friendly police detective, the alleged victim, and the alleged crime partner, a fellow parolee.

The record of the hearing, before a panel of three hearing officers, indicates that on April 7, 1976, when the matter was first called for hearing, testimony was received from one of the two arresting officers, and he was cross-examined by petitioner's attorney. He testified as to what he observed and what he was told by the victim. The investigating parole officer testified that he had interviewed the named investigator for the police department who confirmed his report. That report reveals that the police investigator ascertained that the victim had left the area January 31, 1976, and had given no forwarding address. The parole officer also testified concerning the failure of petitioner to register. Petitioner gave his explanation of what had occurred, and also explained why he had not registered. The hearing officer's notes indicate that at that point all agreed to continue the matter to April 9 in order to get more witnesses. Petitioner's attorney insisted that the named police investigator be present.

On the 9th, another officer, who had accompanied the named police investigator in his investigation, appeared. He testified that the victim reiterated her account of the incident as had been reported by the arresting officers. He described the condition of the victim, and produced colored pictures showing her bruises the day after the alleged attack. The investigating parole officer testified that he had contacted a neighbor of the victim, who was the mother of the youth who reportedly saw petitioner's companion enter the victim's premises by removing a screen from a window, and who also was the informant concerning the victim's disappearance from the neighborhood. She had agreed to appear, but failed to do so.

The record indicates that attempts were made on April 1 and April 5 to notify petitioner's companion, Dees, of the hearing by phone; that he failed to return calls as requested by the hearing officer; and that he was not thereafter notified to appear by the Department of Corrections. On appeal within the Adult Authority, the attorney for petitioner asserted without contradiction that in securing the continuance it was represented that the youth who observed Dees enter the premises would appear, but he did not.

The hearing officers found all three charges were sustained, and revoked petitioner's parole. It was ordered that he be returned to prison and be placed on the April 1977 calendar. ¹ It was recommended that he be placed in category "D," the report of hearing reading, "Determine future violence potential in community especially as it relates to females; evaluate for existing psychosexual disturbance as related to sadism; in view of unwarranted physical assaults in commitment offense and parole violations is there a diagnosable disturbance. If so is he amenable to treatment, and, if so, how long will treatment take?"

On May 13, 1976, petitioner's attorney filed an appeal on his behalf with the Adult Authority. The appeal was denied July 15, 1976. In denying the appeal the reviewers observed, "In the absence of subpoena power by the Adult Authority, we feel the requirements of Morrissey et seq. were met at the hearing . . . ."

Thereafter, petitioner sought review by petition for writ of habeas corpus in the superior court in San Luis Obispo County, which was denied March 2, 1977, and again with this court, which was denied March 25, 1977 (1 Civ. 16730). His petition to the Supreme Court filed April 5, 1977, was more successful. On August 11, 1977, that court issued an order to show cause returnable before this court. (Crim.No. 19897, citing Pen.Code, §§ 5001, 5052, 5078; Gov.Code, § 11182; Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; and In re Prewitt (1972) 8 Cal.3d 470, 105 Cal.Rptr. 318, 503 P.2d 1326.) In due course, after securing an extension of time, the Attorney General filed his opposition, which has been treated as a return to the order to show cause. Thereafter, after further extension of time the petitioner filed his traverse, and the parties having waived oral argument the matter was submitted. (See fn. 1 above.)

I

The evidence before the hearing panel was sufficient to sustain the charges. The arresting officers reported that in answering a burglary call they went to the victim's residence and observed that a window screen had been removed and the window was partially raised. They arrested petitioner and his companion after they had observed the foregoing, heard footsteps running about in the house, and had been told by the exiting victim, whose clothes were disarranged and bloodstained, that there were two men in the house who had broken in and were trying to kill her. They reported that as a result of interviewing the victim and investigating the situation they determined that petitioner's companion had removed the screen from the window, raised the window and entered. The neighbor's son apparently observed that entry. They determined that petitioner was admitted by his companion who went to the front door and opened it.

Officer Porter, one of the two arresting officers, testified on April 7 at the hearing. He stated he observed the removed window screen; that after knocking on the door, the victim came out and said she had been struck by a chain wielded by petitioner who was demanding money; that when she gave him some change he tore her clothing and demanded paper money; that the two forced her and a female companion to lie on a pile of clothing which they attempted to light. He added that the victim told him one of the men had entered through a window, and forced the woman to allow the other man into her room. He also testified that he observed bruises on the victim's legs and neck, and...