Cleaver, In re

• Decision Date: 27 September 1968
• Docket Number: Cr. 7331
• Citation: 72 Cal.Rptr. 20,266 Cal.App.2d 143
• Parties: In re Leroy Eldridge CLEAVER on Habeas Corpus. PEOPLE of the State of California, Plaintiff and Appellant, v. Leroy Eldridge CLEAVER, Defendant and Respondent. CALIFORNIA ADULT AUTHORITY, Petitioner, v. SUPERIOR COURT OF SOLANO COUNTY, Respondent; Leroy Eldridge CLEAVER, Real Party in Interest. ; Civ. 25818, 25919.
• Court: California Court of Appeals Court of Appeals

Page 20

72 Cal.Rptr. 20

266 Cal.App.2d 143

In re Leroy Eldridge CLEAVER on Habeas Corpus.

PEOPLE of the State of California, Plaintiff and Appellant, v. Leroy Eldridge CLEAVER, Defendant and Respondent.

CALIFORNIA ADULT AUTHORITY, Petitioner, v. SUPERIOR COURT OF SOLANO COUNTY, Respondent;

Leroy Eldridge CLEAVER, Real Party in Interest.

Cr. 7331; Civ. 25818, 25919.

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

Sept. 27, 1968.

Rehearing Denied Oct. 24, 1968.

Hearing Denied Nov. 20, 1968.

Thomas C. Lynch, Atty. Gen. of State of California, Albert W. Harris, Jr., Asst. Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for petitioner.

Garry, Dreyfus, McTernan & Brotsky, Charles R. Garry, Benjamin Dreyfus, San Francisco, for real party in interest.

Thomas C. Lynch, Atty. Gen., of California, Edward P. O'Brien, John P. Oakes, Deputy Attys. Gen., San Francisco, for appellant.

Garry, Dreyfus, McTernan & Brotsky, Charles R. Garry, Benjamin Dreyfus, San Francisco, for respondent.

Marshall W. Krause, Paul N. Halvonik, American Civil Liberties Union of Northern California, San Francisco, for amici curiae.

SIMS, Associate Justice.

The People have appealed (Pen.Code, § 1506) from an order granting petitioner, Leroy Eldridge Cleaver, a writ of habeas corpus which released him from prison and reinstated him on parole. (1 Crim. 7331.) The California Adult Authority, as respondent in proceedings taken by the petitioner to find it in contempt and to enjoin and restrain it from thereafter holding a parole violation hearing, as applied in original proceedings in this court for writs of probation and mandate to restrain the trial court from taking further action in those proceedings, and to order the trial court to set aside the orders it has made pursuant to the application of petitioner, as real party in interest. (1 Civ. 25818 and 1 Civ. 25919.) Return on each of the latter applications was set for the time fixed for argument on the appeal, and the matters have been consolidated for hearing.

The questions to be reviewed in the original proceedings involve the validity of the order granting the writ, and further discussion is deferred to follow the resolution of that issue. The People contend that the trial court exceeded the proper scope of inquiry in reviewing the action of the Adult Authority, and that it erroneously determined that the Adult Authority did not have cause to cancel petitioner's parole. The petitioner, in support of the relief he has been granted, asserts that the trial court had power and authority to conduct the proceedings in the manner it did, and to make the order from which the appeal is taken. He also contends that the Adult Authority's practices and procedures, generally and as applied to petitioner in this case, violate constitutional guaranties of due process and equal protection. Underlying the respective contentions of the parties is the question of the nature of the action--stated as 'parole cancelled'--taken by the Adult Authority. This question is examined, and the action is found to be in the nature of a suspension awaiting further hearing by the Adult Authority to determine the question of revocation. The scope of review of such action is defined, and it is determined that the court exceeded its authority in attempting to hold a factual hearing on the merits of the charges made; that the practices and procedures of the Adult Authority as applied to petitioner in 'cancelling' his parole did not violate any of his constitutional rights; and that the cancellation was predicated upon proper cause. No opinion is necessary or expressed upon the question of whether a hearing is necessary before petitioner's parole may be revoked or, if so, the requisites of such hearing. The order must be reversed. In view of the decision on the merits of the appeal, the People are entitled to the relief sought in the original proceedings.

Statement of Facts

Petitioner, Leroy Eldridge Cleaver, was convicted on March 11, 1958, on two counts of assault with intent to commit murder in violation of Penal Code section 217, and three counts of assault with a deadly weapon in violation of Penal Code section 245, with an admitted prior conviction of possession of a narcotic other than marijuana in violation of section 11500 of the Health and Safety Code. Petitioner was thereafter sentenced to the state prison for the term prescribed by law (one to fourteen years for section 217, and not exceeding ten years for section 245), said sentences to run concurrently. On November 28, 1966, the terms were set by the Adult Authority at thirteen years for the assault with intent to commit murder counts, and ten years for the assault with a deadly weapon counts. Petitioner's release upon an approved parole plan was authorized, and he was released on parole December 12, 1966, with a discharge date of March 20, 1971.

On April 7, 1968, the Chief, Parole and Community Services Division of the Department of Corrections (see Pen.Code, §§ 2399--2403) made the following report and recommendation to the Adult Authority:

'Circumstances:

'Subject arrested by the Oakland Police Department on 6 April 1968 for violation of section 245(b) PC (Aslt. on Peace Officer).

'At approximately 2109 hours, 6 April 1968, Officers Jensen and Darnel, OPD, radioed stating we are having a gun battle at 28th and Magnolia. Numerous units responded to the scene. An extensive gun battle ensued, lasting approx. 1 hour and 21 minutes with approx. two thousand shots being fired. The encounter resulted in the residence at 1218, 28th, catching on fire from a tear gas grenade. The following suspects surrendered: (there follow the names of eight individuals other than petitioner's). All of these suspects have tentatively been identified as members of the BLACK PANTHER PARTY.

'Subject was observed and identified by Sgt. E. Hilliard, OPD Vice Control Division, as the individual, at time of surrender, throwing out a carbine rifle and an automatic pistol.

'The incident was unprovoked. The Oakland officer were (sic) routinely checking out a suspicious person near a white Ford bearing Florida license plates when they were fired upon by the foregoing individuals.

'CHARGES:

'1. Leroy Cleaver violated Condition 8 of his Conditions of Parole by his association with individual(s) of bad reputation.

'2. Leroy Cleaver violated Condition 7 of his Conditions of Parole by his control and possession of firearms.'

In accordance with the recommendation contained in the report, the Adult Authority forthwith cancelled petitioner's parole, ordered his return to prison, and refixed his term at maximum.

A second report dated April 10, 1968, was thereafter presented to the Adult Authority. It states as follows:

'REASON FOR REPORT: 'On 3/22/68 Eldridge Cleaver was given a one week out of state visit permit to attend TV shows in Chicago and New York, S to leave California on 3/24/68 and to return to California on 3/30/68. At the time Cleaver was given the travel permit he was instructed by the Unit Supervisor, Issac Rivers, to report to the District Office immediately on his return to California and no later than April 1, 1968. S did not report as instructed and was not heard from until his arrest in Oakland, California on 4/6/68. An attempt was made to contact S on 4/4/68 to ascertain why he had not reported, but no answer was received at his residence.

'On 4/6/68 at approximately 10:30 PM Cleaver along with seven other men (tentatively identified as Black Panthers), was arrested in Oakland, California by officers of the Oakland Police Dept. The arrest came after a 90 minute gun battle in which two police officers were wounded, one suspect, Bobby James Hutton, was killed and two suspects were wounded. Cleaver was one of the wounded. According to the Police the altercation started when two police officers were fired upon when they stopped to investigate a suspicious person. Cleaver was positively Identified by Sgt. E. Hilliard of the Oakland Police Dept. as having in his possession a carbine Rifle and an automatic pistol at the time of surrender. The Oakland PD advises that the Alameda County District Attorney has issued a complaint alleging violation of Section 217 PC (Assault w/intent to commit Murder) against Cleaver and the others arrested. The PD also advises additional charges are pending. Along with Cleaver and the several others at the time of arrest was Warren Wells who has a police record dating back until 1960. He was last released from jail on February 15, 1968. Also arrested with Cleaver was David Hillard a 'Captain' in the Black Panthers, who was charged with a misdemeanor firearms violation after a February 25 arrest. In addition, Bobby Hutton, the killed suspect, had a police record. As indicated, Cleaver was shot (in the leg) during the exchange of gun fire. He was taken to Highland Hospital for treatment and Oakland PD notified California Dept. of Correction's personnel. There was concern that other Black Panthers might attempt to liberate him since this was a night of national urban unrest following Dr. King's assassination. For this reason, CDC personnel transported Cleaver to San Quentin and shortly thereafter to CMF. Special Action was taken by the Adult Authority 4/7/68 to cancel parole.

'CHARGES SPECIFIED:

'1. Leroy Eldridge Cleaver violated Condition 7 of the Conditions of Parole by having in his possession and control firearms.

'2. Leroy Eldridge Cleaver violated Condition 8 of the Conditions of Parole by associating with individuals of bad reputation.

'3. Leroy Eldridge Cleaver violated Condition 10 of the Conditions of Parole by failing to cooperate with his parole agent.

'4. Leroy Eldridge Cleaver violated Condition 11 of the Conditions of Parole by failing to obey all municipal, county, state, and federal laws, ordinances, and orders; and failed to conduct himself as a good citizen.' The recommendation that the...