In re Flores (Anthony) on H.C.

• Decision Date: 15 June 2022
• Docket Number: S273785
• Parties: FLORES (ANTHONY) ON H.C.
• Court: California Supreme Court

FLORES (ANTHONY) ON H.C.

No. S273785

Supreme Court of California

June 15, 2022

C089974 Third Appellate District.

Petition for review denied

The petition for review is denied.

Liu J., is of the opinion the petition should be granted.

Dissenting Statement

Liu Justice

In 2016, California voters passed Proposition 57, one of “several measures aimed [at] reduc[ing] the prison population” as required by federal court order. (In re Gadlin (2020) 10 Cal.5th 915, 923.) The text of the measure said it would, among other purposes, “[p]rotect and enhance public safety,” “[s]ave money by reducing wasteful spending on prisons” and “[s]top the revolving door of crime by emphasizing rehabilitation, especially for juveniles.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop 57, § 2, p. 141.) Consistent with these goals Proposition 57 added article I, section 32 to the California Constitution. It states, in relevant part: “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.” (Id., § 32, subd. (a)(1)).

Proposition 57 directed the Department of Corrections and Rehabilitation (Department) to “adopt regulations in furtherance of” the guarantee of early parole consideration. (Cal. Const., art. I, § 32, subd. (b).) The Department issued regulations governing early parole consideration for persons serving a determinate sentence for a nonviolent felony offense. (Cal. Code Regs. tit. 15, §§ 2449.1-2449.7, 3490-3493.) For this subset of inmates, the regulations limit parole consideration to a paper review of “[i]nformation contained in the inmate's central file and the inmate's documented criminal history,” together with “[w]ritten statements submitted by the inmate, any victims . . ., and the [relevant] prosecuting agency or agencies.” (Id., § 2449.4, subd. (b)(1) & (2).) Inmates are not entitled to an in-person hearing for the initial parole determination or the subsequent review of that decision. (Id., §§ 2449.4, 2449.7.)

Petitioner Anthony Flores is one of many inmates who have been denied parole under the paper review process. In 2011, after fleeing an attempted traffic stop, Flores was convicted of three evasion and assault charges and sentenced to a term of 16 years and four months. In July 2016, Flores was referred to the Board of Parole Hearings (Board) for nonviolent offender parole review. An officer of the Board reviewed his files and issued a two-page decision denying parole. The aggravating factors justifying the denial included the nature of Flores's commitment offenses, which demonstrated an "extremely high level of violence and recklessness," his prior criminal record, and three rules violations over approximately six years. The written order also acknowledged some mitigating circumstances, including the fact that his commitment offenses resulted in no physical injury to any victim and that he had completed some "positive programming" while in prison. Flores appealed this decision, arguing that his files did not adequately reflect the positive things he had done in prison. Another officer issued a one-page order upholding Flores's parole denial.

On a petition for writ of habeas corpus, Flores argued that the Department's failure to afford him an opportunity to appear personally before the officers considering his parole application violated the terms of Proposition 57 and the constitutional guarantee of due process of law. The superior court agreed, ordering the Department to provide Flores with an in-person parole hearing and also ordering it to "promulgate new regulations reflecting the right of Proposition 57 parole-eligible inmates to request and appear at a live hearing on parole suitability."

The Court of Appeal vacated the superior court's order. In rejecting Flores's due process claim, the panel relied on In re Kavanaugh(2021) 61 Cal.App.5th 320 (Kavanaugh), which had denied a similar claim. Since then, two other appellate courts, also relying on Kavanaugh, have rejected similar due process claims asserting the right to an in-person hearing. (In re Bailey(2022) 76 Cal.App.5th 837; In re Ernst(May, 5, 2022, F081386) [nonpub. opn.].)

As explained below, I am doubtful that the denial of in-person parole hearings to eligible inmates comports with due process. Given the statewide importance of this issue, I would grant review. Although Flores has been paroled since filing his habeas corpus petition, thousands of Proposition 57-eligible inmates remain in prison. The fact that Flores has been released during the pendency of this matter, despite not having been afforded an in-person hearing, demonstrates that this is an issue capable of recurring yet evading review.

The due process analysis here requires consideration of four factors:" '(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" (Kavanaugh, supra, 61 Cal.App.5th at pp. 352-353, quoting People v. Ramirez (1979) 25 Cal.3d 260, 269 (Ramirez).)

1. As to the private interest, Kavanaugh said a Proposition 57-eligible inmate possesses a" 'mere anticipation or hope of freedom'" - an interest it described as less weighty than the" 'absolute liberty to which every citizen is entitled'" and less weighty than the" 'conditional liberty'" available to those already granted parole. (Kavanaugh, supra, 61 Cal.App.5th at p. 355.) But this description of a parole applicant's interest was derived from case law that precedes Proposition 57. (See Kavanaugh, at pp. 354-355, citing In re J.G.(2008) 159 Cal.App.4th 1056, 1064, In re Sturm (1974) 11 Cal.3d 258, 266 (Sturm), and Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 10.) As the trial court here recognized, Proposition 57 "[p]lainly . . . created a state constitutional right to early parole consideration for inmates currently serving a prison sentence for nonviolent felonies." This right lends gravity to the applicant's interest. (See Wolff v. McDonnell(1974) 418 U.S. 539, 557 ["the State having created [a state law right], the prisoner's interest has real substance and is sufficiently embraced [by the due process guarantee] to insure that the state-created right is not arbitrarily abrogated"].)

Specifically, a parole applicant possesses not only a subjectively held hope for release, but also the justified expectation that release will be granted upon the satisfaction of enumerated criteria. As the high court has explained, a state may "create[] a constitutionally protected liberty interest" if state law employs "mandatory language" stating that parole" 'shall'" be granted once certain findings are made. (Board of Pardons v. Allen(1987) 482 U.S. 369, 374.) In these circumstances, individuals have an" 'expectation of parole'" protected by due process. (Id. at p. 373.) California law employs such mandatory language. The Department's regulations state that a "hearing officer shall approve release" if he or she "finds the inmate does not pose a current, unreasonable risk of violence or a current, unreasonable risk of significant criminal activity." (Cal. Code Regs. tit. 15, § 2449.4, subd. (f); see Pen. Code, § 3041, subd. (b)(1)) [the Board "shall grant parole to an inmate unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that the consideration of the public safety requires a more lengthy period of incarceration for this individual"].)

Our cases have long held that where state law makes an inmate eligible for parole consideration, the inmate "not only has a right to apply for parole, but is entitled to have his application 'duly considered.'" (Sturm, supra, 11 Cal.3d at p. 268, citing In re Prewitt(1972) 8 Cal.3d 470, In re Minnis (1972) 7 Cal.3d 639, and In re Schoengarth (1967) 66 Cal.2d 295.) The "right to due consideration of parole applications" includes a right to "be free from an arbitrary parole decision, to secure information necessary to prepare for interviews with the [parole authorities], and to something more than mere pro forma consideration." (Sturm, at p. 268; see also In re Rosenkrantz (2002) 29 Cal.4th 616, 655 ["our past decisions also make clear that the requirement of procedural due process embodied in the California Constitution (Cal. Const., art. I, § 7, subd. (a)) places some limitations upon the broad discretionary authority of the Board"].) We have found due process violations when procedures have failed to satisfy these basic guarantees. (See In re Lawrence (2008) 44 Cal.4th 1181, 1227 (Lawrence) [petitioner's due process rights were violated by the Governor's reliance upon the immutable circumstances of her commitment offense in reversing the parole board's decision to grant parole]; Sturm, at p. 272 [finding due process violation when parole authorities failed to provide a definitive written statement of reasons for a parole denial].)

2. The court in Kavanaugh also did not give appropriate weight to the second due process consideration: "the risk of an erroneous deprivation of such interest through the procedures used." (Ramirez, supra, 25 Cal.3d at...