In re Palmer

• Decision Date: 05 April 2019
• Docket Number: A154269
• Citation: 33 Cal.App.5th 1199,245 Cal.Rptr.3d 708
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE William M. PALMER II, on Habeas Corpus.

33 Cal.App.5th 1199

245 Cal.Rptr.3d 708

IN RE William M. PALMER II, on Habeas Corpus.

A154269

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

Filed April 5, 2019

O’Melveny & Myers, Geoffrey H. Yost, San Francisco, Melody Drummond Hansen, Menlo Park, Megan Havstad, Cara L. Gagliano, Micah Chavin, San Francisco, for Petitioner.

Xavier Becerra, Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General, Sara J. Romano, Supervising Deputy Attorney General, Denise A. Yates, Deputy Attorney General

Kline, P.J.William Palmer, serving a sentence of life in prison with the possibility of parole, filed this petition for writ of habeas corpus to challenge his continued incarceration for a crime committed in 1988 as cruel and unusual punishment under article 1, section 17, of the California Constitution and the Eighth Amendment to the United States Constitution. Such challenges based on the length of prison time already served are rare: Most claims of constitutionally excessive punishment challenge sentences when first imposed, looking prospectively at the time the offender will serve. Such challenges rarely succeed, as courts generally defer to determinations of the punishments appropriate to particular offenses made by legislative representatives of the People. Indeterminately sentenced inmates, however, serve terms whose length is fixed not by the Legislature but by the decisions of the Board of Parole Hearings (Board) as to whether and when the prisoner has become "suitable" for release on parole. As will be seen, the serial denials of parole Palmer experienced resulted in punishment so disproportionate to his individual culpability for the offense he committed, that it must be deemed constitutionally excessive.

BACKGROUND

Palmer’s incarceration began in 1988, when, at age 17, he pled guilty to kidnapping for robbery and was sentenced to life with the possibility of parole. He became eligible for parole in 1996 and, over the next 19 years, had 10 parole suitability hearings at which parole was denied. The present petition was filed against the backdrop of ongoing litigation challenging the denial of parole at a hearing in 2015: We initially granted Palmer’s petition for writ of habeas corpus on a ground that was subsequently rejected by the California Supreme Court in In re Butler (2018) 4 Cal.5th 728, 230 Cal.Rptr.3d 736, 413 P.3d 1178 ( Butler ), then subsequently granted the petition on the alternative ground we had originally not addressed. (In re Palmer (Sept. 13, 2018, A147177).) The Supreme Court granted review on January 16, 2019, and ordered the Reporter of Decisions not to publish our opinion. ( In re Palmer (2019) ––– Cal.5th ––––, 242 Cal.Rptr.3d 417, 433 P.3d 1.) The case remains pending in the Supreme Court.¹

Palmer filed the present writ petition on May 11, 2018, shortly after the Supreme Court issued its decision in Butler and before it directed us to reconsider our initial decision on Palmer’s first petition. We issued an order to show cause on August 14, 2018, the Attorney General filed his return on September 24, and Palmer filed his traverse on October 24.

On December 6, 2018, the Board held a new parole suitability hearing as directed in our September 13, 2018 decision. This time, the panel found Palmer suitable for release on parole. We have been advised that he was recently released on parole.

DISCUSSION²

I.

Preliminarily, Palmer’s release on parole does not render his petition moot because parolees remain in constructive state custody and are subject to constraints on their liberty. ( In re Wells (1975) 46 Cal.App.3d 592, 596, 121 Cal.Rptr. 23 ; In re Sturm (1974) 11 Cal.3d 258, 265, 113 Cal.Rptr. 361, 521 P.2d 97.) As noted in Berman v. Cate (2010) 187 Cal.App.4th 885, 892, 114 Cal.Rptr.3d 49, a parolee "is not free from legal restraint by the authorities" and "habeas corpus is the appropriate method for challenging the legality of the restraint." ( Id. at p. 892, 114 Cal.Rptr.3d 49 ; Pen. Code, § 1473, subd. (a).)³

Nor is Palmer’s petition untimely, as respondent maintains. In re Clark (1993) 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 ( Clark ), which set forth the procedural bars respondent relies upon, "explained that procedural rules barring delayed and successive writs ‘are necessary both to deter use of the writ to unjustifiably delay implementation of the law, and to avoid the need to set aside final judgments of conviction when retrial would be difficult or impossible.’ ( Clark , ... at p. 764 [21 Cal.Rptr.2d 509, 855 P.2d 729].) Such rules ‘are simply manifestations of this court’s resolve to balance the state’s weighty interest in the finality of judgments in criminal cases with the individual’s right—also significant—to a fair trial under both the state and federal Constitutions.’ ( In re Harris (1993) 5 Cal.4th 813, 830 [21 Cal.Rptr.2d 373, 855 P.2d 391].)" ( Gomez v. Superior Court (2012) 54 Cal.4th 293, 308–309, 142 Cal.Rptr.3d 808, 278 P.3d 1168.) But "[c]ourts have not strictly applied Clark’s formulation of the rules regarding timeliness and their limited exceptions to cases in which the habeas corpus petition does not attempt to collaterally attack the petitioner’s conviction or sentence. (See In re Espinoza (2011) 192 Cal.App.4th 97 [petition challenging prison policies regarding visitation]; In re Burdan (2008) 169 Cal.App.4th 18 [petition challenging parole decision].)" ( Gomez , at p. 309, 142 Cal.Rptr.3d 808, 278 P.3d 1168.)

The concerns underlying the timeliness requirement certainly are not at issue in a habeas petition raising a claim of constitutionally excessive punishment based on the length of time the inmate has already spent in prison . As the In re Burdan court noted in the context of a challenge to a decision denying parole, "[f]inality of the conviction ... is not an issue," and "[t]he only one potentially prejudiced by a delay ... is the inmate himself," for whom delay means remaining in prison for a longer time. ( In re Burdan, supra, 169 Cal.App.4th at p. 31, 86 Cal.Rptr.3d 549 ; see, People v. Miller (1992) 6 Cal.App.4th 873, 877, 8 Cal.Rptr.2d 193 [claim of excessive punishment reviewable on habeas despite delay "because a defendant’s delay in raising the issue of excessive sentencing ‘works primarily to his own disadvantage’ "].) We agree with Palmer’s assertion that it would be absurd and unjust to bar "an inmate’s challenge to his continued incarceration as unconstitutionally excessive cruel and unusual punishment" on the basis that it was brought "too late into his confinement. "⁴ Similarly, it is not reasonable to view the present petition as a successive, "piecemeal" presentation of a claim that was or should have been presented sooner. ( Clark, supra, 5 Cal.4th at p. 774, 21 Cal.Rptr.2d 509, 855 P.2d 729.) Palmer has never before argued that his term of confinement had become constitutionally excessive, and to say he is barred from doing so now because he could have done so before would be both illogical and unfair.

II.

When a defendant challenges the imposition of a sentence as constitutionally excessive punishment, "[t]he judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. ( Harmelin v. Michigan [ (1991) ] 501 U.S. [957,] 998 [111 S.Ct. 2680, 115 L.Ed.2d 836] (conc. opn. of Kennedy, J.); People v. Dillon [ (1983) ] 34 Cal.3d [441,] 477 [194 Cal.Rptr. 390, 668 P.2d 697].) Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. ( People v. Weddle [ (1991) ] 1 Cal.App.4th [1190,] 1196–1197 ; People v. Mora (1995) 39 Cal.App.4th 607, 615–616 .)" ( People v. Martinez (1999) 76 Cal.App.4th 489, 494, 90 Cal.Rptr.2d 517.)

Palmer presents a different question, as he challenges not the indeterminate life term to which he was sentenced but the actual term of years he was required to serve. The punishment for Palmer’s offense, kidnapping for robbery, is not a legislatively specified number of years; it is simply "imprisonment in the state prison for life with the possibility of parole."⁵ (§ 209.) The number of years an inmate actually serves under such a sentence is determined not by the Legislature but by the Board’s decision whether to grant or deny release on parole. For indeterminately sentenced life prisoners, the Legislative direction is only that the Board "shall normally grant parole" unless "consideration of the public safety requires a more lengthy period of incarceration for this individual." (§ 3041, subds. (a)(2) & (b)(1).) The Board decides whether to grant release on parole based on its determination of the prisoner’s "suitability" for release (§§ 3041, 3041.5), a determination that focuses on the inmate’s current dangerousness, and is largely governed by postconviction conduct and personal development. ( In re Stoneroad (2013) 215 Cal.App.4th 596, 617, 155 Cal.Rptr.3d 639.) The Board does not consider whether denial of an application for parole may result in constitutionally excessive punishment.

Our Supreme Court has recognized, however, that "even if sentenced to a life-maximum term, no prisoner can be held for a period grossly disproportionate to his or her individual culpability for the commitment offense. Such excessive confinement ... violates the cruel or unusual punishment clause ( art. I, § 17 ) of the California Constitution." ( In re Dannenberg (2005) 34 Cal.4th 1061, 1096, 23 Cal.Rptr.3d 417, 104 P.3d 783 ( Dannenberg ).) The proportionality of a sentence turns entirely on the culpability of the offender as measured by "circumstances existing at the time of the offense ." ( Rodriguez, supra, 14 Cal.3d at p. 652, 122 Cal.Rptr. 552, 537 P.2d 384, italics added.) Where an inmate’s sentence is disproportionate...