La Croix, In re

• Decision Date: 25 July 1974
• Docket Number: Cr. 17036
• Parties: , 524 P.2d 816 In re Lawrence L. La CROIX on Habeas Corpus. In Bank
• Court: California Supreme Court

Page 344

115 Cal.Rptr. 344

12 Cal.3d 146, 524 P.2d 816

In re Lawrence L. La CROIX on Habeas Corpus.

Cr. 17036.

Supreme Court of California,

In Bank.

July 25, 1974.

Rehearing Denied Sept. 12, 1974.

Paul L. Forman, Chico, under appointment by the Supreme Court, for petitioner.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., James T. McNally, Anthony L. Dicce and Eddie T. Keller, Deputy Attys. Gen., for respondent.

WRIGHT, Chief Justice.

Petitioner seeks a writ of habeas corpus claiming that he is improperly incarcerated as a parole violator without having been accorded parole revocation hearings mandated by Morrissey v. Brewer (1973), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. We agree in part with petitioner but for reasons hereinafter stated hold that he is not entitled to relief.

Petitioner was convicted in 1971 of the felony of issuing a check without sufficient funds in the bank to cover the same and was sentenced to the state prison for the term prescribed by law. Thereafter, his term was fixed by the Adult Authority (Authority) at four years. In May 1972 he was released on parole in San Bernardino County. It appears from parole officers' reports that on July 7, 1972, petitioner issued to an automobile dealer a check in the sum of $4,308 which when presented for payment was returned to the dealer because of insufficient funds. At approximately the same time petitioner vacated his apartment without giving a required notification to his parole officer. On July 8 petitioner was involved in an accident when his vehicle struck another vehicle which was stopped at a traffic control light. He was arrested on a misdemeanor charge of driving while under the influence of an intoxicating liquor, commonly referred to as drunk driving (Veh.Code, § 23102, subd. (a)) and a breath analyzer test revealed a .25 percent blood alcohol content.

Petitioner failed to appear in court in answer to the foregoing charge and a bench warrant was issued for his arrest. He was arrested as a parole violator (Pen.Code, § 3056) on July 31 in Inyo County when he attempted to cash a check. On September 14 petitioner entered a plea of guilty to the drunk driving charge and thereafter served 30 days in the county jail.

Prior to petitioner's return to custody the Authority had ordered on July 28 that petitioner's parole be suspended and that he be returned to prison 'pending further determination' of parole violations. (See People v. Vickers (1972), 8 Cal.3d 451, 461, 105 Cal.Rptr. 305, 503 P.2d 1313.) On September 26, while petitioner was still confined on the drunk driving conviction, specifications of parole violations were prepared. These included the leaving of the San Bernardino area without notification to his parole officer, writing a check without sufficient funds in the bank to cover the same and operating a vehicle while under the influence of intoxicating liquor in violation of Vehicle Code section 23102, subdivision (a), 'as evidence by his conviction' therefor. On October 20 the Authority again ordered that parole be suspended and that petitioner be returned to prison 'for revocation proceedings.'

On October 24, while still in the San Bernardino County jail although the term of confinement for the drunk driving conviction had expired, petitioner was given a copy of the charges of parole violation and a notice which advised him that he was entitled to a prerevocation hearing. (See People v. Vickers, supra, 8 Cal.3d 451, 456--457, 105 Cal.Rptr. 305, 503 P.2d 1313.) On that same day petitioner made a written request for such a hearing. Petitioner was transferred to prison on November 2, however, without the holding of a prerevocation hearing.

After the order to show cause was issued herein an in-prison parole revocation hearing was held on February 9, 1973. Petitioner pleaded not guilty to all charges of parole violation, but was found guilty as charged on all counts, and parole was formally revoked.

The initial issue is one which we have independently considered and resolved adversely to the People. In response to petitioner's complaint that he has been denied the prerevocation hearing mandated by Morrissey the People assert that Morrissey is inapplicable in those instances where the conduct constituting the charged violation is also charged as a new crime. In the case of In re Valrie, Cal., 115 Cal.Rptr. 340, 524 P.2d 812, filed this date we reject the People's claim of such nonapplicability of Morrissey and hold that the petitioner in that case was entitled to a timely prerevocation hearing which conformed to Morrissey standards although his alleged misconduct was also independently charged as a new crime. The petitioner in the instant case was likewise entitled to a prerevocation hearing.

The entitlement to a prerevocation hearing does not necessarily mean a hearing which is independent of collateral criminal proceedings involving the same course of alleged misconduct. In the case of In re Law (1973), 10 Cal.3d 21, 109 Cal.Rptr. 573, 513 P.2d 621, we considered whether 'the preliminary hearing provided for in our Penal Code in the case of a felony (see §§ 859--883) or the trial itself in the case of a misdemeanor may also serve as the probable cause hearing mandated by Morrissey. . . .' We concluded that the procedures afforded through the holding of a preliminary hearing 'are inclusive of or may be made to conform to the proceedings mandated in Morrissey. . . .' (Id., at p. .27, 109 Cal.Rptr. at p. 577, 513 P.2d at p. 625.) We were less certain that misdemeanor proceedings, as apparently had in the instant case, would in each instance conform to Morrissey requirements for a prerevocation hearing grounded on the same course of conduct. Our chief concerns in such instances were, first, the timeliness of a misdemeanor trial and, second, the unavailability of a written record of trial proceedings. ¹

We also stated in Law that the utilization of criminal proceedings for the secondary purpose of prerevocation hearings would require as a matter of due process 'that a parolee have fair notice of the nature and effect of a hearing intended to serve such a dual purpose.' (Id., at p. 27, 109 Cal.Rptr. at p. 577, 513 P.2d at p. 625.)

It appears in the instant case that the Authority might have sought to arrange that petitioner's trial for violation of Vehicle Code section 23102, subdivision (a), serve also as a prerevocation hearing. However, no such effort was made and petitioner cannot be deemed to have been given a prerevocation hearing by virtue of his conviction when he had not notice that such proceedings would also serve to satisfy Morrissey requirements.

This court in Law and the United States Supreme Court have made it clear that determinations necessary to revocations comporting with due process may be made by other procedures than those prescribed in Morrissey. The high court stated that it was obvious that 'a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime.' (Morrissey v. Brewer, supra, 408 U.S. 471, 490, 92 S.Ct. 2593, 2605, 33 L.Ed.2d 484.) At the time petitioner here requested a prerevocation hearing he already had entered a guilty plea to and had been convicted of another crime, and his alleged parole violations were, in part, predicated upon such conviction. It thus appears that all substantive factual findings necessary to a conclusion that there was probable cause to establish a violation had occurred. In People v. Vickers, supra, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313, we considered the situation where no factual issues were raised at the hearing on revocation and stated: 'There is nothing in the opinion (in Morrissey) which forecloses a summary resolution of the issue of revocation if an undisputed course of conduct constitutes, as a matter of law, a violation of one or more conditions of parole.' (Id., at p. 457, fn. 6, 105 Cal.Rptr. at p. 310, 503 P.2d at p. 1318.) Our comment in Vickers was made in reference to a revocation hearing but is equally applicable to the prerevocation hearing. ²

Petitioner's conviction thus foreclosed the question of whether he had committed particular acts alleged as a basis for parole violation but it did not foreclose his right to a prerevocation hearing. In fact, our comment in Vickers contemplates a hearing for purposes of a determination whether the substantive issues are in fact undisputed and, if so, the legal effect thereof. It is thus clear that in all instances of alleged parole violations within this state a parolee who has not waived his right is entitled to a prerevocation hearing as mandated by Morrissey. (See In re Valrie, Supra, 115 Cal.Rptr. 340, 524 P.2d 812; Sutherland v. D.C. Parole Board (D.C.1973) 366 F.Supp. 270.) Although criminal proceedings involving the same course of conduct may also serve the purpose of a prerevocation hearing, as we have suggested in Law, or may be summarily disposed of as suggested in Vickers (see also fn. 2, supra), no determination of probable cause was ever made in the instant case because there were no proceedings which could be deemed to have satisfied Morrissey requirements for a prerevocation hearing. ³

Having concluded that petitioner was entitled to a prerevocation hearing we next consider whether he may be held to have waived such right in the particular circumstances here present. We have no doubt that the right may be expressly waived and it may be deemed to have been waived when a parolee, with knowledge of the right, fails to assert it in a timely manner. (Compare People v. Wilson (1963), 60 Cal.2d 139, 32 Cal.Rptr. 44, 383 P.2d 452 (waiver of a right to a speedy trial by failure to assert in a timely fashion).) In the instant case, however, petitioner's written request that a prerevo cation hearing be...