Fain, In re

• Decision Date: 28 July 1983
• Citation: 193 Cal.Rptr. 483,145 Cal.App.3d 540
• Court: California Court of Appeals
• Parties: In re William Archie FAIN on Habeas Corpus. AO22049.

Page 483

193 Cal.Rptr. 483

145 Cal.App.3d 540

In re William Archie FAIN on Habeas Corpus.

AO22049.

Court of Appeal, First District, Division 2, California.

July 28, 1983.

Hearing Denied Sept. 30, 1983.

Robert Y. Bell, Law Office of Robert Y. Bell, Santa Rosa, for petitioner.

John K. Van De Kamp, Atty. Gen., Roger E. Venturi, Anthony L. Dicce, Deputy Attys.Gen., Sacramento, for respondent.

KLINE, Presiding Justice.

This habeas corpus proceeding presents the novel question whether the Governor may suspend the parole release date previously accorded a state prison inmate by the Board of Prison Terms and conduct a hearing to determine whether to rescind said release date.We determine the Governor may not do so; for the clear meaning of the pertinent statutes as well as the legislative history of the specific provision the Governor expressly relies upon compel the conclusion that there is no gubernatorial authority to rescind the parole release date of a prisoner still in physical custody.

I.

PetitionerWilliam Archie Fain was in 1967 convicted of murder, rape, sex perversion, kidnaping and attempted kidnaping.In 1969he was additionally convicted of escape, robbery and kidnaping.¹ Fain has served more than 15 years of a life term in state prison for the aforesaid crimes.The details of his violent history and numerous encounters with the criminal justice system have been amply memorialized and need not be reiterated.(SeePeople v. Fain(1969)70 Cal.2d 588, 75 Cal.Rptr. 633, 451 P.2d 65;Fain v. Superior Court(1970)2 Cal.3d 46, 84 Cal.Rptr. 135, 465 P.2d 23;People v. Fain(1971)18 Cal.App.3d 137, 95 Cal.Rptr. 562;In re Fain(1976)65 Cal.App.3d 376, 135 Cal.Rptr. 543;andIn re Fain(1983)139 Cal.App.3d 295, 188 Cal.Rptr. 653.)

The facts pertinent to the instant case are as follows: In April 1977, after the decision in In re Fain, supra, 65 Cal.App.3d 376, 135 Cal.Rptr. 543, the Board of Prison Terms(Board) withdrew the parole release date it earlier granted Fain and set a new parole date of April 26, 1983.On February 25, 1982, relying solely upon public outcry, the Board rescinded the April 26, 1983, parole date.Fain then sought a writ of habeas corpus from the Marin County Superior Court, which granted the writ and ordered his immediate release.On appeal from the granting of the writ, we held that the rescission of a previously established parole date could not be based solely upon a finding of public outcry and remanded the case to the Board for further review.(In re Fain, supra, 139 Cal.App.3d 295, 188 Cal.Rptr. 653.)On February 14, 1983, the Board found that apart from public outcry, there was no new information warranting rescission of the April 26, 1983, release date.On March 23, 1983, the California Supreme Court denied the Board's petition for hearing.Finally, on April 5, 1983, 21 days prior to Fain's scheduled release, the Governor issued an executive order, the full text of which is set forth in the margin below, ² suspending Fain's release date and ordering the Board to retain him in custody pending a parole rescission hearing before the Governor's representative and a gubernatorial decision as to Fain's "suitability for parole."Fain, alleging among other things that the Governor acted in excess of his authority, thereupon filed the instant petition for writ of habeas corpus.

II.

Though the power here challenged has apparently never before been asserted by any California Governor, and there is therefore no case directly on point, it is clear that "... it is within the province of the courts to review on habeas corpus an executive order made in a proceeding such as this involving personal restraint, for the purpose of ascertaining whether or not the order is jurisdictionally supported."(In re Knaesche(1937)22 Cal.App.2d 667, 672, 72 P.2d 216.)³

The Governor finds the authority to support his exercise of power in Penal Code section 3062, which provides in its entirety as follows: "The Governor of the state shall have like power to revoke the parole of any prisoner.The written authority of the Governor shall likewise be sufficient to authorize any peace officer to retake and return said prisoner to the state prison.His written order revoking the parole shall have the same force and effect and be executed in like manner as the order of the Board of Prison Terms."(Emphasis added.)The Governor asserts, and we agree, that the terms "like power,""likewise" and "like manner" refer to the two immediately preceding statutes, sections 3060and3061, which were contemporaneously enacted and also refer to the revocation of parole.

Section 3060 provides: "The Board of Prison Terms shall have full power to suspend or revoke any parole, and to order returned to prison any prisoner upon parole.The written order of any member of the Board of Prison Terms shall be a sufficient warrant for any peace or prison officer to return to actual custody any conditionally released or paroled prisoner."

Section 3061 provides: "It is hereby made the duty of all peace officers to execute any such order in like manner as ordinary criminal process."

The Governor concedes, as he must, the distinction between the revocation of parole, which refers to the situation in which an inmate has previously been released from prison, and the rescission of an unexecuted grant of parole, i.e., the withdrawal of a release date prior to the commencement of parole.(SeeIn re Prewitt(1972)8 Cal.3d 470, 474, 105 Cal.Rptr. 318, 503 P.2d 1326, andIn re Fain, supra, 65 Cal.App.3d at p. 391, 135 Cal.Rptr. 543.)The Governor claims, however, that the power to rescind a parole release date is necessarily included in the power to "suspend or revoke" parole.

This contention rests upon the premise that the Board's power to rescind is inherent in its power to revoke pursuant to section 3060.Stated differently, the Governor asserts that the power of the Board to revoke parole, and therefore also its inherent power to rescind a parole release date, arise out of section 3060.Since his "like power" is identical to that granted the Board under section 3060, the Governor concludes that he too has the power to rescind.The error in this argument lies in the failure of its major premise to recognize the different statutory sources of the Board's distinct powers to rescind a parole release date and to revoke parole.

Analysis of the parole provisions of the Penal Code demonstrates that the Board's power to rescind derives not from section 3060 but from section 3040.

Section 3040 grants the Board "the power to allow prisoners imprisoned in the state prisons ... to go upon parole outside the prison walls and enclosures."The next following sections define the manner in which that power is to be exercised.For example, section 3041 prescribes the criteria for setting parole release dates and reviewing the suitability for parole of eligible prisoners.Section 3041.5 defines the rights of prisoners and the duties of the Board "[a]t all hearings for the purpose of ... postponing or rescinding of parole dates."And section 3041.7 provides that "[a]t any hearing for the purpose of ... postponing, or rescinding a parole release date of a prisoner under a life sentence, such prisoner shall be entitled to be represented by counsel ..." in addition to the rights provided by section 3041.5.Significantly, sections 3041.5and3041.7 are the only provisions of the Penal Code that specifically refer to the rescission of a parole release date.The fact that these two provisions of the Penal Code closely follow section 3040, which they clarify, clearly manifests legislative understanding that the power to rescind a parole release date is an aspect of the power to grant such a date pursuant to section 3040.⁴

Sections 3041.5and3041.7 were enacted at a time when significant revisions in the Penal Code were being made in connection with the Determinate Sentence Law, which became effective on July 1, 1977.As required by well-established rules of statutory construction (seePeople v. Tanner(1979)24 Cal.3d 514, 533, 156 Cal.Rptr. 450, 596 P.2d 328;Buckley v. Chadwick(1955)45 Cal.2d 183, 200, 288 P.2d 12, andKusior v. Silver(1960)54 Cal.2d 603, 618, 7 Cal.Rptr. 129, 354 P.2d 657), we must presume that in enacting these and related parole provisions the Legislature was aware of existing judicial decisions that not only made a distinction between the rescission of a parole release date and the revocation of parole (see, e.g., In re Prewitt, supra, 8 Cal.3d 470, 105 Cal.Rptr. 318, 503 P.2d 1326, andGee v. Brown(1975)14 Cal.3d 571, 122 Cal.Rptr. 231, 536 P.2d 1017), ⁵ but which also declared that the Governor had no discretion to grant or withhold a parole release date.(Azeria v. California Adult Authority(1961)193 Cal.App.2d 1, 5, 13 Cal.Rptr. 839.)The failure of the Legislature at that time (or at any other time) to specifically authorize the Governor to withhold or rescind a parole date therefore must be deemed to represent a considered "intention to leave the law unchanged in that respect."(Kusior v. Silver, supra, 54 Cal.3d at p. 618, 7 Cal.Rptr. 129, 354 P.2d 657.)

In short, the statutory scheme demonstrates that the power to rescind a parole release date is an element of the power to grant or deny parole in the first instance, not an aspect of the power to revoke after parole has actually commenced.⁶Nowhere in the statutes is there any provision for the Governor to share the Board's power to grant or withhold parole in the same manner he shares the power to revoke.It would therefore seem to follow that if there is no statutory authority for the Governor to grant or withhold a parole release date, neither is there any such inherent authority for him to rescind such a date.

This conclusion is not altered by Article V, section 8, of the California Constitution, which the Governor relies upon simply to buttress...