Fain, In re

• Decision Date: 21 January 1983
• Docket Number: Cr. A019142
• Citation: 188 Cal.Rptr. 653,139 Cal.App.3d 295
• Court: California Court of Appeals Court of Appeals
• Parties: In re William Archie FAIN on Habeas Corpus.

Page 653

188 Cal.Rptr. 653

139 Cal.App.3d 295

In re William Archie FAIN on Habeas Corpus.

Cr. A019142.

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

Jan. 21, 1983.

As Modified Feb. 1, 1983.

Hearing Denied March 23, 1983.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Roger E. Venturi, Anthony L. Dicce, Deputy Attys. Gen., Sacramento, for appellant.

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

MILLER, Associate Justice.

We consider whether public outcry can be used as a basis for rescission of a prison inmate's parole date.

Background Facts

Respondent William Archie Fain (hereafter Fain) is an inmate at San Quentin Prison. He has served 15 years of a life term. In 1967 he was convicted of first degree murder, three counts of forcible rape, one count of forcible sex perversion, two counts of kidnapping, and one count of attempted kidnapping, stemming from three separate criminal episodes in June of that year. (People v. Fain (1969) 70 Cal.2d 588, 592-595, 75 Cal.Rptr. 633, 451 P.2d 65.) The jury fixed the punishment at death (id., at p. 592, 75 Cal.Rptr. 633, 451 P.2d 65) but the Supreme Court, while affirming his convictions, ordered a new penalty trial because of Witherspoon error (Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776). (People v. Fain, supra, 70 Cal.2d at p. 601, 75 Cal.Rptr. 633, 451 P.2d 65.)

After remand to the Stanislaus County Superior Court, Fain was returned to that county and confined in its jail pending the penalty retrial. In July 1969, while the retrial was still pending, Fain and five fellow prisoners escaped from the county jail. Fain was recaptured less than two days later. He moved for a change of venue of the penalty retrial, claiming he could not receive a fair and impartial trial in Stanislaus County and citing the pervasive publicity attending both his 1967 crimes and the 1969 escape. (Fain v. Superior Court (1970) 2 Cal.3d 46, 50-51, 84 Cal.Rptr. 135, 465 P.2d 23.) This motion was granted. (Id., at p. 54, 84 Cal.Rptr. 135, 465 P.2d 23.) Meantime, he was convicted of escape, kidnapping and two counts of armed robbery arising from the escape; these convictions, with the exception of the kidnapping count, were affirmed by the Court of Appeal. (People v. Fain (1971) 18 Cal.App.3d 137, 95 Cal.Rptr. 562.)

At Fain's penalty retrial, which was eventually conducted in Sacramento County Superior Court, a jury fixed his punishment at life imprisonment on the 1967 murder count. (In re Fain (1976) 65 Cal.App.3d 376, 382, 135 Cal.Rptr. 543, hereafter Fain I.) That court eventually ordered the sentences on the multitude of other offenses committed in 1967 and 1969 to run concurrently with the life sentence imposed for the 1967 murder. (Id., at p. 382, 135 Cal.Rptr. 543.)

Fain was originally granted a parole release date of June 18, 1976, by a two-person panel of the then-Adult Authority, predecessor to what is now called the Board of Prison Terms (hereafter board), appellant herein. His imminent release received extensive press publicity in and near Stanislaus County, and aroused considerable public opposition, much of which was communicated to the Authority and to legislators representing the area. (65 Cal.App.3d at p. 384, 135 Cal.Rptr. 543.) A month short of Fain's release date, the chairman of the Adult Authority convened a three-person "Review Committee," which issued a "summary report" calling for a rescission hearing to determine whether the scheduled parole date was appropriate "in light of the gravity of the commitment offenses, the inmate's prior criminal history, and his subsequent conduct while in the custody of the Department of Corrections." (Id., at pp. 384-385, fn. 6, 135 Cal.Rptr. 543.)

On Fain's petition, the Marin County Superior Court ordered the Adult Authority not to conduct the scheduled rescission hearing, and ultimately ordered Fain's release, holding that the Authority was without power to review a decision which had become final under applicable rules, and that in any event there was no basis under applicable statutory provisions and rules for revocation of a parole. (Id., at pp. 386-388, 135 Cal.Rptr. 543.)

This court, on appeal from that order, disagreed with the trial court on both counts. (Id., at p. 388, 135 Cal.Rptr. 543.) We observed: "Any deliberative body--administrative, judicial, or legislative--has the inherent power to reconsider an action taken by it unless the action is such that it may not be set aside or unless reconsideration is precluded by law. [Citations.]" (Id., at p. 389, 135 Cal.Rptr. 543.) We found no such preclusion in then-existing statutes and rules. (Id., at pp. 390-391, 135 Cal.Rptr. 543.) In addition, we opined that the trial court's finding as to lack of cause for rescission was based upon an erroneous interpretation of the Authority's rules, which listed as causes for rescission: " '... (1) Disciplinary conduct by the inmate; (2) Psychiatric deterioration of the inmate; and (3) Any new information which indicates that parole should not occur.' " (Id., at p. 392, 135 Cal.Rptr. 543.) We stated that these grounds were not exclusive, and even if they were that public outrage, while it "did not in itself command rescission of his parole," nevertheless was " 'new information which indicates that parole should not occur' and which required the authority's consideration of that possibility in compliance with its rules. [Citation.]" (Id., at p. 393, 135 Cal.Rptr. 543.) We concluded, however, that consideration of the existence of cause for rescission was premature, since "[w]hether there is cause for rescission remains to be decided by the authority at the rescission hearing ...." (Id., at p. 394, 135 Cal.Rptr. 543.)

Thereafter, in April 1977, the board rescinded the 1976 parole date and established a new parole date of April 16, 1983, which was later advanced because of credit calculations to January 19, 1982. In granting rescission, the board found that in setting the 1976 parole date, it had committed "fundamental error" and had abused its discretion.

When it set that 1982 date, the board found that Fain "appears to be a suitable candidate for release on parole, and ... does not appear to represent an unreasonable risk of danger to society."

The panel noted "the consistent, exceptional, laudatory nature" of reports on Fain's prison progress and his "realistic parole release program," including support from his wife and a minister.

In late 1981, as Fain's release drew near, a renewed storm of public outcry arose over his imminent release. The board received petitions containing 62,500 signatures, resolutions of four city councils and three boards of supervisors, a petition of the Attorney General ¹ and a Senate Concurrent Resolution of the California Legislature, all requesting rescission of the parole date.

This outcry resulted in a board hearing on February 17, 1982, to determine (1) whether Fain's parole should be rescinded because of "extraordinary public outcry" or (2) whether the prior board panels had abused their discretion resulting in the improvident granting of a parole date. The board found neither abuse of discretion nor fundamental errors resulting in the improvident granting of a parole date. But it nevertheless rescinded Fain's parole, finding that "there is widespread, unprecedented and extraordinary public outcry in opposition to Fain's release, that this public outcry is new information, and that the quantity and quality of this new information indicate that Fain should not be paroled at this time."

Fain exhausted his administrative remedies and, after all internal appeals were denied, filed the instant petition for writ of habeas corpus. The trial court herein, while considering the public outrage over Fain's release "perfectly understandable" considering the "heinous crimes" he had committed, granted the writ. It held that the opposition to Fain's release did not constitute "new information," since the board received 18,000 signatures in 1976 opposing Fain's release and "the only thing 'new' is the fact that there were more signatures on the 1981 petitions."

The court noted that "the record shows that the Board has continuously been aware of the 'public outcry,' even subsequent to its 1977 decision setting the existing parole date." It found the discussion in our 1976 opinion regarding public outcry "dictum" indicating that "public outcry may be considered as cause granting to the Board authority to reconsider parole, if some other basis applies." (Emphasis added.) The trial court found it "more than interesting to note that when the Board rescinded petitioner's first parole date in 1977, its basis for acting was not the clear public outcry that then existed, but their finding an abuse of discretion on the part of the prior Board panel, in that 'insufficient consideration was given to all factors and crimes' in the case." ² The Board appealed the trial court's grant of habeas corpus, simultaneously seeking a stay of the decision, which was granted by this court. The Supreme Court denied Fain's effort to vacate the stay on a 4-3 vote (order denying hearing, filed October 21, 1982). Fain thus remains incarcerated pending our decision.

Discussion

I. Res Judicata

Fain contends that the board decision which rescinded the 1976 parole date and resulted in a 1982 parole date is binding under res judicata principles because the board successfully defended the decision against habeas corpus attacks.

We do not agree, and Fain's arguments do not support his contention. It is true that res judicata applies to a final judgment granting habeas corpus relief. (In re Crow (1971) 4 Cal.3d 613, 622, 94 Cal.Rptr. 254, 483 P.2d 1206; Cal. Criminal Law Practice (Cont.Ed. Bar May Supp.1980) § 21.127, p. 360 ["if the order granting the writ is affirmed on the People's appeal, ... it becomes...