Handa, In re

• Citation: 212 Cal.Rptr. 749,166 Cal.App.3d 966
• Court: California Court of Appeals Court of Appeals
• Decision Date: 09 April 1985
• Parties: In re Neil W. HANDA on Habeas Corpus. E001223.

Page 749

212 Cal.Rptr. 749

166 Cal.App.3d 966

In re Neil W. HANDA on Habeas Corpus.

E001223.

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

April 9, 1985.

John K. Van de Kamp, Atty. Gen., Frederick R. Millar, Jr., and Raquel M. Gonzalez, Deputy Attys. Gen., San Diego, for respondent and appellant.

Turner & Smart by Robert B. Laney, Pasadena, for petitioner and respondent.

RICKLES, Associate Justice.

Defendant Neil Handa, a prisoner now serving a life sentence for first degree murder, brought this habeas corpus proceeding to obtain a new Stanworth hearing to set his parole release date under the pre-1978 Indeterminate Sentencing Law regulations. (See, In re Stanworth (1982) 33 Cal.3d 176, 187 Cal.Rptr. 783, 654 P.2d 1311.) The trial court granted the relief requested and the People have appealed.

FACTS

During the early hours of August 7, 1972, defendant murdered Bruno Bertoni in Bertoni's motel room in Colton. Defendant had been staying in a nearby room under an assumed name. Defendant put Bertoni's body in Bertoni's automobile and used towels from his own room to mop up the blood. Defendant drove Bertoni's automobile to Victorville where he cashed Bertoni's traveler's checks and obtained medical attention for his swollen right hand. Defendant drove to Needles where he spent the night at a motel, registering in Bertoni's name. Defendant put Bertoni's body in a ditch near the highway and covered it with rocks and debris. Defendant abandoned Bertoni's automobile on August 31 at the airport in Seattle, Washington. Defendant flew to Hawaii where he obtained employment using Bertoni's name and identification papers. Defendant was arrested in Hawaii for Bertoni's murder on November 24, 1972.

Defendant's trial was held in November 1973. Bertoni's body had not been identified. Defendant testified in his own behalf, claiming he did not know what had happened to Bertoni and was innocent of all charges. Defendant was convicted of first degree murder, forgery, and grand theft auto. He was sentenced to the term prescribed by law on each count, with the sentences to run concurrently.

Defendant continued to protest his innocence during the years following his convictions, but he was told he would never be found eligible for parole until he admitted his guilt and revealed the location of Bertoni's body. Defendant's appeal from the judgment of conviction was unsuccessful. On December 5, 1974, the judgment was affirmed by an opinion of this court and the remittitur issued on February 4, 1975.

In 1978, defendant for the first time indicated he would acknowledge guilt and reveal the location of the victim's body. A parole eligibility hearing was held on December 4, 1978. Defendant told the panel of the Community Release Board that he had been burglarizing Bertoni's motel room when Bertoni suddenly returned. Defendant said he was on amphetamines and had not slept for some days. He hit Bertoni with his fists and Bertoni died. He described the location near Needles where he had concealed the body. ¹ The Board found defendant eligible for parole and set his term, using the Determinate Sentencing Law (DSL) criteria, at 184 months, resulting in a parole release date in March 1988. Defendant had progress hearings in 1979 and 1980, resulting in advancement of his release date by eight months to July 1987. The next progress hearing was scheduled for November 1983.

In December 1982, our Supreme Court decided in Stanworth that a prisoner serving a life term under a pre-DSL conviction, and who had been found suitable for parole, was entitled to have parole release dates calculated according to both the Indeterminate Sentencing Law (ISL) and the DSL, and to be released on the earlier of the two dates. (In re Stanworth, supra, 33 Cal.3d at p. 188, 187 Cal.Rptr. 783, 654 P.2d 1311.)

In May 1983, a Stanworth hearing was held to determine defendant's parole release date under ISL standards. At the conclusion of the hearing, defendant's total period of confinement under ISL was set at 168 months. His next progress hearing was scheduled for May 1985. Defendant filed an administrative appeal from the decision, but the appeal was denied effective September 28, 1983. Defendant then commenced this proceeding in habeas corpus.

The petition was submitted on the documents introduced by either side and on a tape recording of the Stanworth hearing. The trial court ruled by minute order, stating in relevant part:

"The Court finds that the hearing failed to afford Petitioner procedural due process in that the hearing panel failed to specifically characterize petitioner's base offense as 'typical' or 'aggravated' as they were required to do by the former ISL Parole Board Rules. The Court further finds that even if it be assumed that the parole hearing panel characterized petitioner's base offense as 'aggravated' by implication they failed to state in the record sufficient specific factual reasons for their finding in that the principal factor mentioned was not based solely on the seriousness of the base offense but related to events occurring years after the offense was committed. The Court further finds that the record of the hearing fails to state what consideration, if any, the panel gave to mitigating factors relating to petitioner's drug usage at the time of the offense. ... Petitioner's alternate request that this Court order that he be afforded a hearing de novo under the conditions set forth in In re Stanworth is GRANTED."

I

At a Stanworth hearing, the ISL parole release date is determined according to the administrative regulations in effect immediately before adoption of the DSL. (In re Stanworth, supra, 33 Cal.3d at p. 183, 187 Cal.Rptr. 783, 654 P.2d 1311.) These regulations, promulgated in 1976, "represented the first and only published guidelines for parole under the ISL." (Ibid.) They are sections 2200 et seq. of former title 15 of the Administrative Code.

The parole release date is calculated by first selecting one of the commitment offenses, usually the most serious, as the base offense. The panel then sets a base period of confinement determined solely by the gravity of the base offense. The rules contain a table of suggested base ranges for each felony crime to serve as general guidelines and not as absolute limits. The total period of confinement is determined by applying certain adjustments to the base period. Adjustments may be based on preconviction factors such as criminal record and family history, offense factors such as number of victims, weapons used, and other offenses sentenced consecutively, and postconviction factors including behavior in prison. The ISL panel has broad discretion in deciding what factors merit adjustments and how many months to add or subtract for each adjustment. (In re Stanworth, supra, 33 Cal.3d at pp. 183-184, 187 Cal.Rptr. 783, 654 P.2d 1311.)

In the ISL rules, the suggested base ranges for all crimes except first and second degree murder are in two categories, typical and aggravated. For first and second degree murder, however, there is a single range for each, with the range for first degree murder being 8 to 13 years.

Section 2352 of the ISL rules provides: "The base offense will be characterized as a 'typical' or 'aggravated' crime of that type using the criteria of Sections 2200-2202 and 2357-2358. The hearing panel will list specific factual reasons for characterizing an offense as aggravated. Characterization of a base offense as 'typical' or 'aggravated' will be based solely on the seriousness of the base offense."

Defendant's base offense was first degree murder. The panel selected 13 years (156 months) as the base period of confinement, the maximum in the suggested range. The panel added one year for the forgery conviction and one year for the grand theft auto conviction. The panel subtracted one year for defendant's exceptionally good postconviction performance in the prison system. Thus the total period of confinement was set at 14 years (168 months).

The trial court found that the panel erred in failing to characterize the murder of Bertoni as either "typical" or "aggravated" under section 2352. On appeal, the Attorney General argues that it was unnecessary to characterize the crime because there is only a single suggested base range for first degree murder rather than separate "typical" and "aggravated" ranges as for most other crimes. Alternatively, the Attorney General argues that the panel did find the crime to be aggravated even though the word "aggravated" was not used.

Because the latter argument is clearly meritorious, we need not consider the former.

The...