In re Bailey

• Decision Date: 28 March 2022
• Docket Number: C092799
• Citation: 76 Cal.App.5th 837,291 Cal.Rptr.3d 800
• Parties: IN RE Larry BAILEY, On Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

76 Cal.App.5th 837

291 Cal.Rptr.3d 800

IN RE Larry BAILEY, On Habeas Corpus.

C092799

Court of Appeal, Third District, California.

Filed March 28, 2022

Rob Bonta and Matthew Rodriquez, Attorneys General, Phillip J. Lindsay, Senior Assistant Attorney General, Sara J. Romano and Amanda J. Murray, Supervising Deputy Attorneys General, Michael G. Lagrama and Linnea D. Piazza, Deputy Attorneys General, for Appellant.

Byron C. Lichstein, Auburn, under appointment by the Court of Appeal, for Respondent.

Robie, J.

In 2014, a jury found petitioner Larry Bailey guilty of assault with a deadly weapon and leaving the scene of an accident and found true various enhancements. Petitioner was sentenced to 28 years in prison.

"In 2016, voters approved Proposition 57, the ‘Public Safety and Rehabilitation Act of 2016.’ Proposition 57 amended the California Constitution to grant early parole consideration to persons convicted of a nonviolent felony offense. ( Cal. Const., art. I, § 32, subd. (a)(1).)^{[1 ]} It also authorized the Department of Corrections and Rehabilitation ([Department]) to adopt regulations in furtherance of its guarantee of early parole consideration. (Id. , subd. (b).) Acting pursuant to this authority, [the Department] issued regulations governing early parole consideration for persons serving a determinate sentence for a nonviolent felony offense. ( Cal. Code Regs., tit. 15, §§ 2449.1, 2449.3 - 2449.7, 3490 - 3493 (hereafter, the parole regulations).)" ( In re Kavanaugh (2021) 61 Cal.App.5th 320, 334, 275 Cal.Rptr.3d 696, fns. omitted.)

In 2017 and 2018, the Board of Parole Hearings (Board) considered petitioner for Proposition 57 parole. In each of the parole consideration proceedings, the Board allowed petitioner to submit a written statement explaining why he should be granted parole. The Board explained, "[t]his is a ‘paper review’ process" and "[t]here will not be a hearing for you or others to attend." (Bolding omitted.) The Board, through written decisions by a deputy commissioner, both times denied petitioner parole. Petitioner requested administrative review of each of the parole decisions; both decisions were upheld.

Petitioner thereafter filed two petitions for writ of habeas corpus in the trial court. The trial court consolidated the petitions and issued an order to show cause. The trial court denied petitioner's claims challenging the evidentiary sufficiency of the parole denials, but granted petitioner habeas relief after finding he was entitled to "a live parole hearing at which [he] could attend." The trial court interpreted Penal Code section 3041.5 " ‘as providing for a hearing for all inmates eligible for parole consideration, at the very least to comply with federal and state due process concerns as well as equal protection.’ "

The trial court further ordered the Department to, within 60 days of the finality of the decision, promulgate new parole regulations to reflect the right to an in-person hearing under Proposition 57. The trial court explained " ‘it is not necessary for the Department to promulgate regulations that provide for a live hearing in every single case. Rather, the Department could choose to provide for live hearings only for those inmates not granted parole in an initial paper review, upon request of that inmate.’ " The Department appeals.

The question before us is whether determinately sentenced nonviolent prisoners eligible for parole consideration under Proposition 57 are constitutionally entitled to an in-person hearing. The answer is, "no." We conclude Proposition 57 neither requires nor impliedly incorporates an in-person hearing requirement, and the Department acted within its delegated authority under section 32, subdivision (b) when it adopted the parole regulations at issue in this appeal. We further conclude the absence of an in-person hearing does not violate equal protection principles, nor does it violate a prisoner's right to procedural due process. We accordingly reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The facts underlying petitioner's conviction are not material to the disposition of this appeal. We thus do not recite them here. We further do not recite the particulars as to the trial court's decision because our standard of review is de novo. ( California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 208, 127 Cal.Rptr.3d 726, 254 P.3d 1019 [equal protection claims are reviewed de novo]; Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 82, 272 Cal.Rptr.3d 224 [procedural due process claims are reviewed de novo]; Wang v. City of Sacramento Police Dept. (2021) 68 Cal.App.5th 372, 378-379, 283 Cal.Rptr.3d 578 [statutory construction/interpretation claims are reviewed de novo].) We recite only the background relevant to the pertinent parole regulations, the validity of which is the subject of this appeal.

IProposition 57

"In 2009, a three-judge federal district court panel ordered the Department ‘to reduce the prisoner population to 137.5% of the adult institutions’ total design capacity.’ [Citations.] The California Legislature and electorate subsequently enacted several measures aimed to reduce the prison population, including Assembly Bill No. 109 ((2011-2012 Reg. Sess.); Stats. 2011, ch. 15, § 482; criminal realignment) and Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000). Still, the issue persisted and in February 2014 the federal district court ordered the Department to implement additional measures.

"Against this backdrop, in November 2016 the electorate approved Proposition 57. [Citation.] As relevant here, the initiative added section 32 to article I of the California Constitution. The new section states: ‘Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.’ [Citation.] It further provides that ‘the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.’ [Citation.] Finally, as noted earlier, the new provision directs the Department to ‘adopt regulations in furtherance of these provisions’ and instructs the Secretary of the Department to ‘certify that these regulations protect and enhance public safety.’ [Citation.]

" Article I, section 32(a) identifies the purposes behind the constitutional provision, stating that it was ‘enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law.’ Uncodified portions of Proposition 57 further identify the initiative's purpose and intent. Those purposes, in relevant part, are: ‘1. Protect and enhance public safety. [¶] 2. Save money by reducing wasteful spending on prisons. [¶] 3. Prevent federal courts from indiscriminately releasing prisoners. [¶] 4. Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles.’ [Citation.] The initiative also states that the ‘act shall be liberally construed to effectuate its purposes.’ " ( In re Gadlin (2020) 10 Cal.5th 915, 922-923, 272 Cal.Rptr.3d 879, 477 P.3d 594, fn. omitted.)

IIThe Pertinent Parole Regulations

"Under the parole regulations, a person sentenced to a determinate term for a nonviolent felony is generally eligible for early parole consideration when he or she has served the full term of his or her primary offense. [Citations.] [The Department] conducts the parole eligibility reviews and refers eligible prisoners to the Board for parole consideration on the merits. [Citations.] Eligibility reviews are conducted annually ‘until the inmate is released from custody or is no longer eligible for parole consideration ....’ [Citations.]

"If a prisoner is found eligible for parole consideration and referred to the Board, the Board must provide notification about the pending parole review to the prisoner, the prosecuting agency, and the victim(s) who were harmed by the prisoner's crime(s). [Citations.] The Board must also afford the prisoner, the prosecuting agency, and the victim(s) an opportunity to submit a written statement to the Board. [Citations.]

"A hearing officer -- defined by regulation as a Board commissioner, a deputy commissioner, an associate chief deputy commissioner, or the chief hearing officer [citation] -- must then review the ‘case on the merits and determine whether to approve the inmate's release,’ [citation]. When conducting the merits review, the hearing officer must ‘review and consider all relevant and reliable information’ including but not limited to the prisoner's central file, the prisoner's documented criminal history, and any written statements submitted by the prisoner, the prosecuting agency, and/or the victim(s). [Citation.] The hearing officer must weigh various aggravating and mitigating factors pertaining to the prisoner's current conviction(s), prior criminal conviction(s) and behavior, and institutional behavior, work history, and rehabilitative programming, as well as the written statements received by the Board. [Citation.] The factors are ‘general guidelines’ and ‘the importance attached to any factor or combination of factors in a particular case is left to the judgment of the hearing officer.’ [Citation.]

"The hearing officer must then issue a written decision, supported by a statement of reasons, determining whether the prisoner poses a current, unreasonable risk of violence or a current, unreasonable risk of significant criminal activity. [Citation.] If the hearing officer finds the prisoner poses such a risk, the hearing officer must deny parole release. [Citation.] If the hearing officer finds the prisoner does not pose such a risk, the hearing officer must grant parole release. [Citation.] But, if the parole release decision will result in the...