Dunham, In re, Cr. 18810

• Decision Date: 04 February 1976
• Docket Number: Cr. 18810
• Citation: 545 P.2d 255,16 Cal.3d 63,127 Cal.Rptr. 343
• Court: California Supreme Court
• Parties: , 545 P.2d 255, 76 A.L.R.3d 571 In re Peter Harrison DUNHAM on Habeas Corpus.

Page 343

127 Cal.Rptr. 343

16 Cal.3d 63, 545 P.2d 255, 76 A.L.R.3d 571

In re Peter Harrison DUNHAM on Habeas Corpus.

Cr. 18810.

Supreme Court of California,

In Bank.

Feb. 4, 1976.

Alex L. Landon, San Diego, under appointment by the Supreme Court, for petitioner.

Paul G. Sloan and Friedman & Sloan, San Francisco, as amici curiae on behalf of petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth, Karl J. Phaler and Steven V. Adler, Deputy Attys. Gen., for respondent.

John E. Howard, Acting Dist. Atty., Los Angeles, Harry B. Sondheim and Jay J. Becker, Deputy Dist. Attys., as amici curiae on behalf of respondent.

RICHARDSON, Justice.

This case is a companion to In re Coughlin, Cal., 127 Cal.Rptr. 337, 545 P.2d 249, wherein we hold that the trial court at a probation revocation hearing properly may consider evidence indicating that the probationer may have committed another criminal offense during the probation period, despite his acquittal of that offense at trial. In the present case, we adopt a similar rule with respect to Parole revocation proceedings conducted before the Adult Authority.

In September 1972, petitioner was placed on parole after serving a portion of a prison term for an unspecified offense. On July 25, 1974, he was arrested and charged with two counts of armed robbery (Pen.Code, § 211) and possession of a concealable weapon by an ex-felon (Pen.Code, § 12021). On August 12, 1974, a preliminary examination was conducted and petitioner was held to answer the robbery charges. The possession of a concealable weapon charge was dismissed for lack of evidence; however, the magistrate did find that petitioner was armed and used a firearm in the course of the robberies. On October 11, 1974, an amended information was filed charging petitioner with additional offenses which the evidence at the preliminary examination indicated petitioner had committed (see Pen.Code, § 739), namely, burglary (Pen.Code, § 459) and assault with a deadly weapon (Pen.Code, § 245, subd. (a)). On March 11, 1975, petitioner commenced jury trial on the foregoing offenses, and on April 2, 1975, he was acquitted of these charges.

When petitioner was first arrested, a parole hold was placed on him by his parole officer, and on February 11, 1975, petitioner was notified of the charges supporting parole revocation. These charges included the offenses of which petitioner was later acquitted. Nevertheless, on April 7, 1975, following his acquittal, petitioner was notified by the Adult Authority that a parole revocation hearing would take place on April 23. This hearing lasted approximately 8 hours; testimony was elicited from 13 witnesses, including petitioner and his counsel, and documentary evidence was introduced, including exhibits from petitioner's trial. Following the hearing, petitioner was found to have possessed a firearm, to have committed armed robbery, and knowingly to have associated and resided with homosexuals (a parole violation not the subject of his former trial). Petitioner's parole was ordered revoked.

Thereafter, on April 29, 1975, petitioner filed a petition for a writ of habeas corpus in superior court, contending that his parole was improperly revoked. Following a hearing, the court ordered the 'associating with homosexuals' charge stricken, but denied all other relief. Petitioner now contends that his parole should not have been revoked on the basis of offenses of which he was acquitted at trial. He also urges that the delay in notifying him of the parole revocation charges and in conducting a prompt prerevocation hearing was improper under Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.

Under Penal Code section 3060, the Adult Authority is given 'full power to suspend, cancel or revoke any parole . . ..' The sole statutory restriction upon the power to revoke parole is section 3063, which provides that 'No parole shall be suspended or revoked without cause, which cause must be stated in the order suspending or revoking the parole.' Of necessity, the authority has broad discretion in determining whether or not to revoke parole. (See In re Tucker (1971) 5 Cal.3d 171, 176, 95 Cal.Rptr. 761, 486 P.2d 657.) As pointed out in the landmark case of Morrissey v. Brewer,supra, this decision requires the availability of accurate facts, since it '. . . involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts.' (408 U.S. at p. 480, 92 S.Ct. at p. 2599.) As we recently concluded in In re Minnis (1972) 7 Cal.3d 639, 645, 102 Cal.Rptr. 749, 753, 498 P.2d 997, 1001, in our consideration of the powers of the Adult Authority, 'Any official or board vested with discretion is under an obligation to consider All relevant factors . . ..' (Italics in original.) A review of the applicable cases establishes that the courts have been sensitive to the authority's need for accurate information regarding a parolee's conduct while released to society.

In In re Payton (1946) 28 Cal.2d 194, 169 P.2d 361, relied upon by petitioner, parole was suspended without hearing when new charges were filed against the parolee. We suggested in Payton that in the event of an acquittal, the suspension order should be vacated, assuming that no other charges supported suspension of parole. We reaffirm this principle, for it would be improper for the Adult Authority to continue to suspend parole in sole reliance upon The mere filing of charges against a parolee, once an acquittal has oc curred. Payton, of course, does not suggest that the Adult Authority would be precluded by the acquittal from holding a hearing and examining the facts surrounding the charges in deciding whether to revoke parole.

Indeed, this very question was resolved a few years later in In re Anderson (1951) 107 Cal.App.2d 670, 237 P.2d 720 (hg. den.). There, the Adult Authority revoked parole on the ground of possession of a firearm despite the parolee's prior acquittal of that offense. The court noted that it is the general rule that judgments in criminal cases neither preclude subsequent civil proceedings nor conclusively establish innocence, in view of the different standards of proof required in these proceedings. (See cases cited in Coughlin, ante, at p. 341 of 127 Cal.Rptr., at p. 253 of 545 P.2d.) The Anderson court explained that '. . . the Adult Authority in matters of parole accepts a heavy responsibility in permitting convicts to be at large and if it was believed After a hearing that the preponderance of the evidence was to the effect that petitioner had in fact had a gun in his possession the Authority's action in revoking his parole ought not to be interfered with notwithstanding in the criminal proceeding in Los Angeles County he had been acquitted of the same charge.' (P. 673, of 107 Cal.App.2d, p. 722 of 237 P.2d, italics added; accord, Standlee v. Smith, (1974), 83 Wash.2d 405, 518 P.2d 721; Contra, Standlee v. Rhay (D.Wash.1975) 403 F.Supp. 1247).

The court in Anderson concluded that our Payton decision was not intended '. . . to depart from the general rules (regarding the inconclusive effect of acquittals in criminal cases) we have herein discussed nor to hold that by such an acquittal the Adult Authority is bound and barred from proceeding themselves to determine the facts of the charge.' (P. 674 of 107 Cal.App.2d, p. 722 of 237 P.2d) We denied a hearing in Anderson and, indeed, as late as 1963 cited Anderson with approval for the proposition that 'An acquittal is merely an adjudication that the proof at the prior proceeding was not sufficient to overcome all reasonable doubt of the guilt of the accused.' (People v. Griffin (1963) 60 Cal.2d 182, 191, 32 Cal.Rptr. 24, 29, 383 P.2d 432, 437 (permitting introduction At a criminal trial of evidence regarding defendant's prior similar offense, despite his acquittal of that offense); see also People v. Vaughn (1969) 71 Cal.2d 406, 420, 78 Cal.Rptr. 186, 455 P.2d 122 (same).)

Petitioner also relies upon a certain dictum in In re Hall (1965) 63 Cal.2d 115, 117, 45 Cal.Rptr. 133, 403 P.2d 389, to the effect that the Adult Authority should vacate its preliminary order suspending parole once the defendant has been acquitted of the charges upon which the suspension order was based. Once again, as in Payton, we said nothing in Hall to suggest that the Adult Authority lacked power to hold its own hearing to determine whether parole should be revoked on the basis of the facts underlying the defendant's acquittal of criminal charges. Hall and Payton stand as authority for the sole proposition that a preliminary suspension order cannot stand once an acquittal has occurred.

The two most recent cases of this court on the subject explain the proper function of the Adult Authority in this area. In In re Brown (1967) 67 Cal.2d 339, 341--342, 62 Cal.Rptr. 6, 8, 431 P.2d 630, 632 we held that although an invalid conviction, reversed on appeal, cannot support revocation of parole,...