In re Ernst

• Decision Date: 04 May 2022
• Docket Number: F081386
• Parties: In re JOHN ERNST, On Habeas Corpus.
• Court: California Court of Appeals

In re JOHN ERNST, On Habeas Corpus.

F081386

California Court of Appeals, Fifth District

May 4, 2022

NOT TO BE PUBLISHED

APPEAL from an order granting writ of habeas corpus Kern Super. Ct. No. HC016437A. Michael E. Dellostritto, Judge.

Rob Bonta and Xavier Becerra, Attorneys General, Matthew Rodriquez, Acting Attorney General, Phillip J. Lindsay, Julie A. Malone, Pamela B. Hooley, Amanda J. Murray, Linnea D Piazza, Deputy Attorneys General, for Appellant Patrick Covello, Acting Warden of Mule Creek State Prison.

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

OPINION

POOCHIGIAN, ACTING P. J.

INTRODUCTION

This case involves the question of whether Proposition 57 requires an in-person parole hearing for prisoners convicted of nonviolent offenses and sentenced to determinate terms.

In 2018, respondent John Ernst pleaded guilty to felony criminal threats and admitted prior serious felony enhancements; he was sentenced to 14 years in prison. In both 2018 and 2019 Ernst was eligible for the parole consideration as a prisoner convicted of a nonviolent felony and sentenced to a determinate sentence, pursuant to the provisions of Proposition 57.

Proposition 57 was approved by California voters in 2016, and added section 32 to Article I of California's Constitution that 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." (Cal. Const., art I, § 32, subd. (a)(1), italics added.)^[1] Section 32 authorized the California Department of Corrections and Rehabilitation (CDCR) to adopt regulations in furtherance of its guarantee of early parole consideration. (§ 32, subd. (b).)

CDCR adopted regulations pursuant to the authority granted by section 32 for parole consideration of prisoners convicted of nonviolent felonies and serving determinate sentences. These regulations provide for prisoners to receive a "paper" parole review conducted by a "hearing officer," defined as "a commissioner, deputy commissioner, associate chief deputy commissioner, or Chief Hearing Officer" with the Board of Parole Hearings (the Board) (Cal. Code Regs., tit. 15, § 2449.1, subd. (g)), ^[2] and not an in-person hearing before the Board. The prisoner may file a written statement for consideration. If parole is denied, the prisoner may request review of the decision and file a written description of why the decision was incorrect. A separate hearing officer considers the request for review. The prisoner may further seek review of the denial of parole through a petition for writ of habeas corpus. (In re Kavanaugh (2021) 61 Cal.App.5th 320, 336-337 (Kavanaugh).)

Ernst, as a nonviolent felon sentenced to a determinate term, received a "paper" review for early parole consideration in 2018, consistent with CDCR's regulations; he did not file a written statement, parole was denied, and he did not file an administrative challenge or a writ petition. He was again considered for parole in 2019, under the same regulations, and filed a written statement as to why he should receive parole. His parole was denied by a hearing officer. He filed a written administrative challenge, his challenge was heard by a different hearing officer as required by the regulations, and the challenge was denied.

After the 2019 denial, Ernst filed the instant petition for writ of habeas corpus with the Superior Court of Kern County and argued CDCR's regulations that provide for a paper review for early "parole consideration" under section 32 was inconsistent with the intent of Proposition 57 and violated his constitutional rights. Ernst argued "parole consideration" meant an in-person hearing before members of the Board, as already provided in the Penal Code and existing regulations for prisoners serving indeterminate terms. The superior court agreed with Ernst, granted his petition, and ordered CDCR to hold an in-person parole hearing.

The instant appeal was filed by the warden of Mule Creek State Prison, represented by the People of the State of California (the People). The People argue that CDCR's regulations for a paper review for early parole consideration under Proposition 57 are not inconsistent with section 32 and do not violate Ernst's constitutional rights. Ernst asserts the superior court correctly found the regulations were not consistent with the "parole consideration" required by section 32, and the failure to provide determinately sentenced, nonviolent offenders with an in-person hearing before the Board violated his federal and state constitutional rights to due process and equal protection.

While this appeal was pending, Kavanaugh, supra, 61 Cal.App.5th 320 was filed, and held these regulations were consistent with section 32's mandate for "parole consideration" and did not violate the due process rights of the prisoner in that case; the California Supreme Court denied review in Kavanaugh.

We find Kavanaugh persuasive to the extent it addressed the same issues raised in this case. We further conclude the superior court erroneously granted Ernst's petition for relief and that CDCR's regulations do not violate Ernst's constitutional rights.

FACTUAL AND PROCEDURAL BACKGROUND

The Underlying Offense

On August 30, 2016, Ernst stated to his mother that he was going to" 'burn her'" and" 'harm her'" from her head to her knees. The victim related that she was very scared of her son due to his mental issues and believed he would possibly kill her. Later that same day, she heard knocking on her front door and believed it was possibly law enforcement outside her residence. When she unlocked the door, Ernst pushed the door open, forced his way inside, slammed the door shut, and locked it. Once inside, he grabbed the victim and threw her into her room, causing her to fall injuring her right arm. When Ernst realized law enforcement was on the way, he fled the residence in his vehicle.

Ernst had prior convictions for first degree burglary in 1983, and he was placed on probation for five years (Pen. Code, § 459); infliction of corporal injury on a spouse or cohabitant in 1992 (Pen. Code, § 273.5), and sentenced to two years in prison; and criminal threats in 2001 (Pen. Code, § 422), sentenced to 32 months in prison; he was released on parole in 2003.

Ernst's Conviction and Sentence

On January 12, 2018, Ernst pleaded guilty in the Superior Court of Kern County to one count of criminal threats (Pen. Code, § 422), and admitted two prior serious felony enhancements (Pen. Code, § 667, subd. (a)).^[3]

On February 13, 2018, Ernest was sentenced to the midterm of four years for criminal threats, plus two consecutive five-year terms for the enhancements, for an aggregate determinate term of 14 years in state prison.

PAROLE PROCEDURES PRIOR TO PROPOSITION 57

Ernst's writ petition, and the superior court's order that granted relief in this case, focused on certain parole procedures and regulations that existed prior to the enactment of Proposition 57. The superior court concluded these existing regulations, that provided for in-person hearings before the Board, also applied to parole consideration and procedures for determinately sentenced prisoners under section 32. In reaching this conclusion however, the superior court relied on statutes and regulations governing the parole consideration process for indeterminately sentenced prisoners. (Kavanaugh, supra, 61 Cal.App.5th at p. 347.)

A prisoner sentenced to a determinate term is released on parole upon expiration of his term as accelerated by any earned credits and does not receive parole based on a discretionary decision made by the Board at a hearing. (Pen. Code, § 1170, §§ 2931- 2933, § 3000; In re Dannenberg (2005) 34 Cal.4th 1061, 1078; People v. Jefferson (1999) 21 Cal.4th 86, 95.)

A prisoner sentenced to an indeterminate term of life with the possibility of parole must serve a minimum term of confinement before being eligible for parole, after which the Board is empowered to make the discretionary determination whether the prisoner is suitable to be released on parole. (Pen. Code, §§ 3040, 3041, 3041.5, 3046; In re Dannenberg, supra, 34 Cal.4th at pp. 1078-1079; People v. Felix (2000) 22 Cal.4^th 651, 659; People v. Jefferson, supra, 21 Cal.4th 86 at p. 95; In re Jackson (1985) 39 Cal.3d 464, 488-489.) "The parole consideration procedures are governed by [Penal Code] section 3040 et seq. and apply to all inmates not serving a determinate sentence. (§ 1170 et seq.; see §§ 3041, 3000.) Once such an inmate has served sufficient time to be eligible or soon eligible for parole, he or she receives notice that a parole suitability hearing before a Board hearing panel will be held. ([Pen. Code, ] §§ 3041, 3041.5, 3042.) The inmate is afforded a variety of rights before and during the hearing. These include the right (1) to examine nonconfidential documents in the prison file and answer them in writing in advance of the hearing, (2) to reasonable assistance in preparing for the hearing, (3) to ask and answer questions and present evidence at the hearing, (4) to an impartial hearing panel, and (5) to receive a record of the proceedings and a copy of the hearing panel's written decision," based on the procedural provisions contained in the Regulations at title 15, sections 2245 through 2246. (In re Jackson, supra, 39 Cal.3d at p. 468; Kavanaugh, supra, 61 Cal.App.5th at p. 347; In re J.G. (2008) 159 Cal.App.4th 1056, 1065-1066.)

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