In re Kavanaugh

• Decision Date: 25 February 2021
• Docket Number: D077003,D076500,D076821
• Citation: 61 Cal.App.5th 320,275 Cal.Rptr.3d 696
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE Alexei KAVANAUGH on Habeas Corpus. In re Alberto J. Moreno on Habeas Corpus. In re Larry Smith on Habeas Corpus.

61 Cal.App.5th 320

275 Cal.Rptr.3d 696

IN RE Alexei KAVANAUGH on Habeas Corpus. In re Alberto J. Moreno on Habeas Corpus. In re Larry Smith on Habeas Corpus.

D076500

D076821

D077003

Court of Appeal, Fourth District, Division 1, California.

Filed February 25, 2021

Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Linnea D. Piazza, Deputy Attorneys General, for Appellant California Department of Corrections and Rehabilitation.

Angela Bartosik, Chief Public Defender, and Euketa Oliver, Public Defender, for Respondents Alexei Kavanaugh, Alberto J. Moreno, and Larry Smith.

McCONNELL, P. J.

INTRODUCTION

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 California Department of Corrections and Rehabilitation (CDCR) to adopt regulations in furtherance of its guarantee of early parole consideration. (Id. , subd. (b).) Acting pursuant to this authority, CDCR 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 – 3493² (hereafter, the parole regulations).)

Petitioners Alexei Kavanaugh, Alberto Moreno, and Larry Smith (hereafter, the petitioners) were denied parole release under the procedures established by the parole regulations. In separate habeas corpus proceedings challenging the parole denials, the trial courts invalidated the parole regulations and ordered new parole consideration proceedings for the petitioners. The courts found the parole regulations are unconstitutional because they do not guarantee the assistance of legal counsel for potential parolees, they do not require in-person parole hearings, and they permit individual hearing officers—rather than multi-member panels—to make parole release decisions. According to the courts, the parole regulations conflict with section 32's guarantee of parole consideration and violate prisoners' procedural due process rights.

In contrast to the trial courts, we conclude the parole regulations do not conflict with the constitutional guarantee of parole consideration or violate due process. Section 32 broadly ensures parole consideration for eligible felons, but it does not specify the procedures governing the parole consideration process. Rather, it vests CDCR with authority to adopt regulations in furtherance of its guarantee of parole consideration. CDCR acted within its mandate by enacting the parole regulations. Further, the parole regulations do not impinge on the procedural due process rights of prisoners seeking parole. They require annual parole eligibility reviews, set forth sufficiently definite criteria governing parole release decisions, mandate a written statement of reasons for each parole release decision, and grant prisoners notice of the parole proceeding, an opportunity to submit a written statement to the Board of Parole Hearings (the Board), and the right to seek review of an adverse decision.

These features adequately safeguard against arbitrary and capricious parole release decisions.

Because we conclude the parole regulations are consistent with section 32's guarantee of parole consideration and do not violate prisoners' procedural due process rights, we reverse the orders granting the petitioners' habeas corpus petitions.

IIBACKGROUND

ALegal Background

In the November 2016 general election, California voters approved Proposition 57. Proposition 57 added section 32 to the California Constitution. (Prop. 57, § 3.) Section 32, subdivision (a)(1) states in pertinent part as follows: "Parole Consideration: 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." ( § 32, subd. (a)(1).) The expressed goals of the early parole consideration provision are "to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order ...." (Id. , subd. (a).)

Section 32, subdivision (b) instructs CDCR to adopt implementing regulations for the early parole consideration provision set forth in section 32, subdivision (a)(1). It states that CDCR "shall adopt regulations in furtherance of these provisions, and the Secretary of [CDCR] shall certify that these regulations protect and enhance public safety." (§ 32, subd. (b).)

CDCR promulgated the parole regulations pursuant to section 32, subdivision (b).³ 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.⁴ (Regs., tit. 15, §§ 3490, subds. (e)–(f) ; 3492, subd. (a).) CDCR conducts the parole eligibility reviews and refers eligible prisoners to the Board for parole consideration on the merits. (Id. , §§ 3491, subds. (c)–(e); 3492, subds. (a)–(b).) Eligibility reviews are conducted annually "until the inmate is released from custody or is no longer eligible for parole consideration ...." (Id. , § 3492, subd. (b) ; see id. , § 2449.4, subd. (h).)

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). (Regs., tit. 15, §§ 2449.3 ; 3492, subd. (c).) The Board must also afford the prisoner, the prosecuting agency, and the victim(s) an opportunity to submit a written statement to the Board. (Ibid. )

A hearing officer—defined by regulation as a Board commissioner, a deputy commissioner, an associate chief deputy commissioner, or the Chief Hearing Officer (Regs., tit. 15, § 2449.1, subd. (g) )—must then review the "case on the merits and determine whether to approve the inmate's release," (id. , § 2449.4, subd. (a)). 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). (Id. , subd. (b).) 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. (Id. , § 2449.5, subds. (a)–(h).) 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." (Id. , subd. (a).)

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. (Regs., tit. 15, § 2449.4, subds. (c)–(d).) If the hearing officer finds the prisoner poses such a risk, the hearing officer must deny parole release. (Id. , subd. (e).) If the hearing officer finds the prisoner does not pose such a risk, the hearing officer must grant parole release. (Id. , subd. (f).) But, if the parole release decision will result in the prisoner's release two or more years prior to his or her earliest possible release date, the parole release decision must be reviewed by an associate chief deputy commissioner or the Chief Hearing Officer, who may concur with the decision or issue a new decision approving or denying the parole release. (Ibid. )

Within 30 days of being served with the hearing officer's parole release decision, the prisoner may request review of the decision. (Regs., tit. 15, §§ 2449.4, subd. (i); 2449.7, subd. (a).) The request for review must "include a description of why the inmate believes the previous decision was not correct and may include additional information not available to the hearing officer at the time the previous decision was issued." (Ibid. ) A hearing officer not involved in the original decision must then, within 30 days of the Board's receipt of the request for review, "consider all relevant and reliable information and issue a decision either concurring with the previous decision or overturning the previous decision with a statement of reasons supporting the new decision." (Id. , subds. (c)–(d).)

BLower Court Proceedings

This appeal arises from three separate habeas corpus proceedings in which the trial courts found the parole regulations are unconstitutional.

Petitioners' Parole Denials

In 2013, Kavanaugh pleaded guilty to three counts of obtaining and using personal identifying information of another person ( Pen. Code, § 530.5 ), one count of obtaining a controlled substance by fraud ( Health & Saf. Code, § 11173, subd. (a) ), one count of possession of a concealed firearm as an individual with a prior violent felony conviction ( Pen. Code, § 29900, subd. (a)(1) ), and one count of making a criminal threat ( Pen. Code, § 422 ), and he admitted an on-bail enhancement ( Pen. Code, § 12022.1 ) and a strike prior ( Pen. Code, §§ 667, subds. (b) – (i) ; 1170.12). He was sentenced to a determinate term of 14 years eight months in prison. In 2017, and again in 2018, a hearing officer reviewed Kavanaugh's case for early parole consideration, found Kavanaugh posed an unreasonable risk to the community, and denied release.

In 2017, Moreno pleaded guilty to one count of unlawful taking of personal property ( Pen. Code, § 484 ), and admitted a strike prior ( Pen. Code, §§ 667, subds. (b) – (i) ; 1170.12) and a prison prior ( Pen. Code, §...