Fain, In re

• Decision Date: 28 December 1976
• Docket Number: Cr. 15844
• Citation: 65 Cal.App.3d 376,135 Cal.Rptr. 543
• Court: California Court of Appeals Court of Appeals
• Parties: In re William Archie FAIN on habeas corpus.

Page 543

135 Cal.Rptr. 543

65 Cal.App.3d 376

In re William Archie FAIN on habeas corpus.

Cr. 15844.

Court of Appeal, First District, Division 4, California.

Dec. 28, 1976.

Rehearing Denied Jan. 26, 1977.

Hearing Denied March 17, 1977.

Paul W. Comiskey, San Francisco, Michael Satris, Prison Law Office, San Quentin, for respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg and April Kestell Cassou, Deputy Attys. Gen., San Francisco, for appellant.

RATTIGAN, Associate Justice.

The Adult Authority and Raymond K. Procunier, its Chairman, appeal from an order which directs the issuance of a writ of habeas corpus and has the effect of ordering the immediate release of respondent William Archie Fain on parole from state prison. The order was made upon the trial court's determination that 'final' administrative action taken by the Adult Authority granting Fain a parole and setting a date for his actual release, could not be rescinded by the Authority prior to his release. We have concluded that the court erred in this determination; we reverse the order.

Fain came within the parole-setting jurisdiction of the Adult Authority, pursuant to the Indeterminate Sentence Law (Pen.Code, ¹ §§ 1168, 3040 et seq.; In re Stanley (1976) 54 Cal.app.3d 1030, 1033, 126 Cal.Rptr. 524, 128 Cal.Rptr. 829), by reason of his commitment to the Department of Corrections under sentences imposed upon his convictions, in two successive prosecutions, of murder and an array of other felonies committed in Stanislaus County. The several crimes and prosecutions, which resulted in three previous appellate decisions (People 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), are to be summarized in some detail because of their relevance to the Adult Authority's actions which are disputed on this appeal. The three previous decisions, and the record made in this proceeding, support the following recitals:

In Fain's first prosecution, which was conducted in the Stanislaus County Superior Court in 1967, he was charged with murder and seven other felonies committed in June of that year. These crimes are described, in varying detail, in the decisions cited. (See People v. Fain, supra, 70 Cal.2d 588 at pp. 592-- 595, 75 Cal.Rptr. 633, 451 P.2d 65; Fain v. Superior Court, supra, 2 Cal.3d 46 at p. 49, 84 Cal.Rptr. 135, 465 P.2d 23; People v. Fain, supra, 18 Cal.App.3d 137 at p. 140, 95 Cal.Rptr. 562.) After a jury trial in the 1967 prosecution, Fain was convicted on one count of first degree murder (§§ 187, 189) for which the jury fixed the punishment at death, three counts of forcible rape (§ 261), one count of forcible sex perversion (§ 288a), two counts of kidnaping (§ 207), and one count of attempted kidnaping. (§§ 663, 207.) (People v. Fain, supra, 70 Cal.2d 588 at p. 592, 75 Cal.Rptr. 633, 451 P.2d 65.) On automatic appeal from the judgment of conviction, the Supreme Court affirmed as to guilt on all counts but reversed as to penalty. (Id., at pp. 592, 603, 75 Cal.Rptr. 633, 451 P.2d 65.)

After the remand to the Stanislaus County Superior Court which followed, Fain was returned to that county and confined in its jail pending the penalty retrial. In July, 1969, while the retrial was still pending, he and five other jail prisoners plotted and effected an escape. He was promptly recaptured in Stanislaus County. He then moved the superior court for an order changing the venue of the penalty retrial to another county upon the ground that cumulative local publicity, attending both the 1967 crimes and the 1969 escape, had raised a reasonable likelihood that he could not obtain a fair penalty trial in Stanislaus County. (Fain v. Superior Court, supra, 2 Cal.3d 46 at pp. 49--51, 84 Cal.Rptr. 135, 465 P.2d 23.) The superior court denied his motion and the Court of Appeal denied his petition for a writ of mandate (Id., at p. 51, 84 Cal.Rptr. 135, 465 P.2d 23), but the Supreme Court granted it and ordered the Stanislaus County Superior Court to transfer the cause to another county. (Id., at pp. 51--55, 84 Cal.Rptr. 135, 465 P.2d 23.)

The Supreme Court's action eventually resulted in the removal of Fain's penalty retrial to the Sacramento County Superior Court. He was meanwhile prosecuted, again in Stanislaus County, for the 1969 escape and various crimes associated with it. This prosecution resulted in his conviction upon one count of escape (§ 4532, subd. (b)), two counts of first-degree armed robbery (§ 211), one of auto theft (Veh.Code, § 10851), and one of kidnaping (§ 207), all as committed in 1969. (People v. Fain, supra, 18 Cal.App.3d 137 at pp. 141, 144, 95 Cal.Rptr. 562.) On his appeal from the judgment of conviction, the Court of Appeal reversed it as to the kidnaping count; affirmed it otherwise; upheld the separatesentencing procedure followed by the Stanislaus County Superior Court; and referred various other sentencing matters to the Sacramento County Superior Court, where Fain's retrial on the penalty phase of his first prosecution was then still pending. (Id., at pp. 144--145, 95 Cal.Rptr. 562.)

The recitals which continue from this point are supported by the record made in the present proceeding only. At Fain's penalty retrial, which was eventually conducted in the Sacramento County Superior Court in 1971, a jury fixed his punishment at life imprisonment on the 1967 murder count. In conjunction with a 'combined commitment' to the Department of Corrections by that court in December of 1971, the court sentenced Fain (1) to life imprisonment on the 1967 murder count, (2) to the terms prescribed by law on the three counts of forcible rape, the two counts of kidnaping, the single count of forcible sex perversion, and the single count of attempted kidnaping, all as committed in 1967; and (3) to the terms prescribed by law on the count of escape, the two counts of first degree armed robbery, and the count of auto theft, all as committed in 1969. All of the sentences described under (2) and (3) were ordered to run concurrently with the life sentence imposed for the 1967 murder.

The Adult Authority's process of reviewing Fain's status, specifically including his eligibility for parole and the timing thereof, commenced from the 1971 base just described. ² The events of the process, next recited, occurred subject to pertinent sections of the Penal Code and rules of the Adult Authority. ³

By early 1975, the sentences imposed upon Fain for three of his crimes (the 1967 attempted kidnaping, the 1969 escape, and the 1969 auto theft) had been deemed 'discharged' prospectively (as of November 18, 1975). 'At that point (early 1975), he was still serving the life sentence imposed for the 1967 murder and the other sentences concurrently imposed for the two 1967 kidnapings, the three 1967 rapes, the 1967 sex-perversion charge, and the two first-degree armed robberies committed in 1969.

With respect to these ongoing sentences, Fain was given a hearing before a two-person 'panel' on April 22, 1975. The panel consisted of one Adult Authority 'member' and one 'case-hearing representative.' ⁴ By written entry made in Fain's administrative record on that date (on a 'CDC 279' form), the panel granted him parole to be effective on a 'parole date' (or 'release date') which the panel fixed at October 12, 1976. The two panelists signed the CDC 279, and it was countersigned by another Adult Authority member (who had not been on the panel and had not participated in the hearing), on the date it was made (April 22, 1975). In the language of section 5076.1 and the pertinent Authority rules, the countersignature meant that the action 'granting . . . parole' had tehreupon 'become final' as 'approved by a panel of (two) members of the Adult Authority.' (See § 5076.1, PBR 2003(a) and PBR 2045(b), quoted in fn. 4, Ante.)

Another panel interviewed Fain at a further hearing on November 18, 1975. By written entry made in his record on that date (again on a 'CDC 279' form), the panel applied a 'jail credit' to the previously-fixed release date and granted him an adjusted release date of June 18, 1976.

In the spring of 1976, Fain's imminent release on parole received extensive press publicity in and near Stanislaus County. They raised substantial public opposition to the prospect, much of which was communicated to the Adult Authority and to legislators representing the area. At least one of the legislators protested Fain's release to the aforementioned Raymond K. Procunier, the Chairman of the Adult Authority. On May 12, 1976, a month short of the scheduled release date, Procunier convened a three-man 'Review Committee' pursuant to PBR 2044. ⁵ The committee consisted of Procunier, another member of the Adult Authority, and a 'representative.' After reviewing Fain's administrative record on May 12, its members signed a 'Summary Report' which cited apparent cause, and called, for a 'rescission hearing' directed to his previously-granted parole. Although the report summarizes some of the events already recited above, it serves to frame some of the issues in this proceeding and on the appeal. We therefore quote its full text in the margin. ⁶ The rescission hearing was eventually scheduled to be conducted on June 7, 1976, eleven days short of Fain's still-scheduled release date. Notice of the time and place of the hearing, and a copy of the Review Committee's 'Summary Report' of May 12, were mailed to Fain's attorney. In a letter written to Procunier in late May, and among other things, the attorney requested 'a more particular and specific statement of reasons, causes or charges which form the basis of this action of attempting to rescind parole at this time.' In a reply letter written on June 1, the Vice Chairman of the Adult...