Duarte, In re

Decision Date15 June 1983
Docket NumberCr. 11235
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re Patrick DUARTE On Habeas Corpus.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Ramon M. de la Guardia, Deputy Attys. Gen., for appellant.

Michael R. Snedeker, Sacramento, under appointment by the Court of Appeal, for respondent.

CARR, Associate Justice.

The People appeal from an order granting Patrick Duarte's petition for writ of habeas corpus. (Pen.Code, § 1506.) We first considered this appeal and reversed the order. (In re Duarte (3 Crim. 11235, Jan. 11, 1982).) Hearing was granted (Supreme Ct.Dock. No. 22527, Feb. 16, 1983) and the matter was returned to this court for reconsideration in light of In re Stanworth (1982) 33 Cal.3d 176, 187 Cal.Rptr. 783, 654 P.2d 1311.

Upon reconsideration, we conclude Stanworth resolves the question of how petitioner's parole release date is to be determined, the topic of our previous opinion, but does not address the more narrow issue of how petitioner's initial suitability for parole is to be determined. Having re-examined this issue, we have determined our prior opinion nonetheless reached the correct result. We shall therefore reverse.

On January 6, 1969, Patrick Duarte robbed a gas station and repeatedly shot While serving his prison term, Duarte was convicted on October 26, 1978, in San Bernardino County Superior Court of assault on a correctional officer and sentenced to a concurrent term of sixteen months.

the attendant because of the small amount of money available. He was convicted of first degree murder and first degree robbery and was sentenced to life in prison. His minimum eligible parole date was February 1, 1977.

In February 1979 and 1980, Duarte's suitability for parole was evaluated in accordance with guidelines set forth in California Administrative Code, title 15, section 2281. He was found unsuitable as posing an unreasonable risk of danger to society by reason of his violent history, his serious and continuing misconduct in prison (having been found responsible for 37 disciplinary infractions), and psychiatric diagnoses of an antisocial personality disorder and drug dependence on barbiturates.

Duarte then brought the instant petition alleging that at the time of his crime the Indeterminate Sentencing Law (ISL) was in effect, but that at his parole hearing in 1980 his suitability for parole was judged under the Determinate Sentencing Law (DSL) regulations, enacted after his incarceration. While conceding he may have been found unsuitable for parole under the former ISL regulations, petitioner contends the exclusive application of the DSL regulations constitutes an ex post facto law, and a denial of equal protection. He asserts he will eventually be found suitable for parole and is therefore entitled to annual hearings pursuant to both sets of rules, and application of the earliest of the two parole release dates. That was the order of trial court. 1

It is now established that petitioner, when eligible for parole, will be entitled to have his parole release date determined pursuant to both the regulations in effect under the ISL and the current DSL guidelines, and be given the earlier of the two dates. (In re Stanworth (1982) 33 Cal.3d 176, 188, 187 Cal.Rptr. 783, 654 P.2d 1311.) Stanworth, however, considered only the two sets of regulations as they applied to a prisoner's parole release date. That case did not involve the question of which regulations apply in making the initial determination of whether the prisoner is suitable for parole. 2 Having re-examined this question in light of Stanworth's discussion of ex post facto laws, we conclude exclusive application of the DSL regulations governing suitability for parole to Duarte constitutes neither an ex post facto law nor a denial of equal protection of the law.

DISCUSSION

Both the United States Constitution (art. I, § 9; art. I, § 10) and the California Constitution (art. I, § 9) prohibit the enactment of an ex post facto law. "In general, 'any law which was passed after the commission of the offense for which the party is being tried is an ex post facto law, when it inflicts a greater punishment than the law annexed to the crime at the time it was committed [citations]; or which alters the situation of the accused to his disadvantage....' ( Ex parte Medley, Petitioner, 134 U.S. 160, 171 [10 S.Ct. 384, 387, 33 L.Ed. 835].)" (People v. Ward (1958) 50 Cal.2d 702, 707, 328 P.2d 777, disapproved on another point in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2, 649, 36 Cal.Rptr. 201, 388 P.2d 33.) "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense." (Weaver v. Graham (1981) 450 U.S. 24, 30-31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17, 24.) There was a retrospective application of the DSL guidelines to Duarte and the issue before us is whether the DSL parole suitability guidelines are "more onerous" than the ISL guidelines or have altered Duarte's situation to his disadvantage.

At the time Duarte committed his offenses the power to determine a prisoner's suitability for parole was "vested in the Adult Authority. [Citation.] While a prisoner eligible for parole has the right to apply therefor and to have his application duly considered, he has no right to a parole at any fixed time, or at all; the decision to grant or deny parole is committed entirely to the judgment and discretion of the Adult Authority. [Citations.] 'In determining whether the privilege of parole shall be granted a prisoner, that authority is not guided solely by the good conduct of the prisoner while incarcerated. The nature of his offense, his age, his prior associations, his habits, inclinations and traits of character, the probability of his reformation and the interests of public security are all taken into consideration.' " (In re Schoengarth (1967) 66 Cal.2d 295, 300, 57 Cal.Rptr. 600, 425 P.2d 200.) "The exercise of this discretion involves the deliberate assessment of a wide array of individualized factors on a case-by-case basis, and the striking of a balance between the interests of the inmate and of the public." (In re Fain (1976) 65 Cal.App.3d 376, 389, 135 Cal.Rptr. 543.) Until 1976, no formal regulations were established to guide the exercise of the Adult Authority's discretion. As one commentator noted, this "[a]bsence of formal criteria together with lack of written reasons for decisions and the unilateral nature of most decisions result in a completely discretionary and therefore possibly arbitrary decision process." (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, 373-375.)

Partially in response to this situation, regulations were promulgated in 1976 in Title 15 of the California Administrative Code. These Parole Board Rules (hereinafter PBR) were relatively short-lived, being superceded by DSL regulations, the Board of Prison Terms rules (hereinafter BPT), in 1978. 3 The PBR were somewhat limited in their consideration of a prisoner's suitability for parole. They provided that at a prisoner's initial parole hearing, an inmate could be found unsuitable if "in the opinion of the hearing panel an unreasonable risk of danger to society would be posed by release." (PBR § 2300.) 4 The parole board was given examples of types of factors that could be considered in determining unsuitability. (PBR § 2301.) 5 If parole was denied, the board could inform the prisoner what he might do to increase his chances of parole, and was required to give him a written statement of reasons for the denial. (PBR § 2300.) The inmate was then entitled to subsequent reviews every one or two years. (PBR § 2304, subd. (a).) 6

It is apparent from these regulations the discretion of the Community Release Board was not greatly diminished by the PBR rules. An inmate could be denied parole if his release posed an "unreasonable risk of danger to society" and the Board was given only examples of factors to consider, such as a history of violent or sexual attacks on others. (PBR §§ 2300, 2301.) The factors previously used in determining suitability for parole remained relevant criteria under the PBR. The question of suitability was still an individualized balancing of the interests of the inmate and the public. (In re Fain, supra, 65 Cal.App.3d at p. 389, 135 Cal.Rptr. 543.)

Upon passage of the DSL, new parole regulations were promulgated which, inter alia, set a longer range of base terms for first degree murder and required the imposition of certain sentence enhancements. The goal was to achieve uniformity of sentences and stress the criminal activities of the inmate rather than social or personal factors. (In re Stanworth, supra, 33 Cal.3d at p. 186, 187 Cal.Rptr. 783, 654 P.2d 1311.) These changes, however, were primarily concerned with the inmate's parole release date. Regarding an inmate's suitability for parole, the Legislature left a "consideration of the public safety" as the fundamental criteria in assessing suitability. 7 In implementing this legislative directive, the Board of Prison Terms followed the same procedure as existed under the PRB. At the life prisoner's initial parole hearing, the Board must first determine the prisoner's suitability for parole. The prisoner is unsuitable if "in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if...

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