In Re Richard Schoenfeld
| Decision Date | 04 August 2010 |
| Docket Number | A127680,No. 63187C,63187C |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re RICHARD SCHOENFELD, on Habeas Corpus. |
By this petition for writ of habeas corpus, Richard Schoenfeld challenges the portion of the October 30, 2008, decision of the Board of Parole Hearings (Board) calculating his release date. The calculation, resulting in a term of approximately 187 years, was made in conjunction with the Board's decision finding him suitable for parole. We agree with Schoenfeld that the Board erred when it (1) failed to understand it had discretion with regard to the calculation of Schoenfeld's term under governing regulations applicable to the Uniform Determinate Sentencing Act of 1976 (DSL) (Pen. Code, § 1170, et seq.), (2) failed to simultaneously calculate his term under governing regulations applicable to the indeterminate sentencing law (ISL) , and (3) thereafter failed to impose the earlier of the two calculated release dates. (In re Stanworth (1982) 33 Cal.3d 176, 188 (Stanworth).) The fact that a parole rescission hearing may be pending in the case does not now relieve the Board from the foregoing duties.
Schoenfeld, his brother, and a third crime partner pled guilty in 1977 to 27 counts of kidnapping for ransom (Pen. Code, § 209). The victims were the driver and hisbusload of local school children from the community of Chowchilla.1 Schoenfeld was sentenced to concurrent life terms with a minimum term of six months on each count pursuant to the then existing provisions of the Youthful Offender Act (former Pen. Code, § 1202b, repealed by Stats. 1976, ch. 1139, § 274, eff. July 1, 1977). (People v. Schoenfeld, supra, 111 Cal.App.3d at p. 676, fn. 3.) Because the crime took place July 15, 1976, Schoenfeld was committed under the ISL sentencing scheme in effect until July 1, 1977.
On October 30, 2008, the Board found Schoenfeld suitable for parole (Cal. Code Regs., tit. 15, § 2281)2 and applying regulations applicable to life prisoners sentenced under the DSL (§§ 2282-2290), calculated his term to be over 187 years. By letter dated March 10, 2009, Schoenfeld was notified that the decision was final.
Schoenfeld challenged the Board's calculation by petition for writ of habeas corpus filed in the Alameda County Superior Court. That petition noted that he had been scheduled to have his ISL term set in June 2009, but the hearing was cancelled. He explained that he did not want to further delay seeking relief. The superior court denied the petition December 21, 2009. On February 24, 2010, he sought relief from this court.
Meanwhile, the Board apparently rescheduled an ISL term calculation hearing for August 14, 2009. Despite vigorous objection, Schoenfeld's attorney who had represented him at his suitability hearing (Pen. Code, § 3041.5) and made objections to the DSL calculation was not allowed to participate.3 Thereafter, instead of proceeding with a release date calculation under ISL regulations, the Board panel declared that it believed the 2008 suitability decision was an "improvident" grant and ordered that arescission hearing be conducted.4 Schoenfeld's challenge to that decision is the subject of a separate appeal in this court (case No. A128543) and will not be addressed in this proceeding. The Board has never calculated an ISL release date for Schoenfeld. No rescission hearing has occurred to date.
Schoenfeld first contends, and we agree, that the Board failed to recognize that several DSL term setting regulations afforded it discretion with regard to calculating term length. Conceding that the Board had discretion, the Attorney General responds that Schoenfeld has not met his burden to rebut the presumption that official duty was regularly performed. (Evid. Code, § 664) The record is otherwise. Notwithstanding repeated objections by Schoenfeld's attorney, the Board twice noted that it "must" add seven years for each count, adding that "[i]t doesn't make any difference" whether terms imposed by the sentencing judge were consecutive or concurrent. The Board took a recess to call "up there," apparently to Sacramento. The Board then told Schoenfeld the "calculations" would be "redone in Sacramento." Finally, pronouncing the term, the Board noted "we were told we must, or should." These comments amply demonstrate by a preponderance of the evidence (In re Visciotti (1996) 14 Cal.4th 325, 351), that the Board panel failed to understand its role, responsibility, and discretion in calculating a release date for Schoenfeld under the DSL regulations.
The Attorney General also argues that Schoenfeld's attorney failed to adequately object below to the Board's failure to exercise discretion. Taken in context, however, the attorney's repeated arguments in response to the Board's proposed calculation are sufficient to preserve the issue for our review.
Schoenfeld secondly contends that application of the DSL regulations promulgated after his commitment offense to the calculation of his parole release date violates ex post facto prohibitions of the United States and California Constitutions. Schoenfeld is plainly correct, as the California Supreme Court so held in 1982. (In re Stanworth, supra, 33 Cal.3d 176.) Discussing the differences between ISL and DSL rules at length, the court held that "the standard of punishment has been altered to defendant's prejudice in violation of ex post facto principles," and that he is entitled to a hearing and consideration under both standards with the benefit of the earlier release date if any. (Id. at p. 188.)
Citing Stanworth, supra, our order to show cause stated that it appeared the Board erred when it "failed to simultaneously calculate" the term under both ISL and DSL standards. The Attorney General quarrels with the term "simultaneously" arguing that Schoenfeld did not allege such a failure in his petition for writ of habeas corpus. We disagree. By alleging that calculation of his term under DSL standards violated ex post facto principles, Schoenfeld necessarily sought to invoke the remedy set forth in Stanworth. Absent an ISL calculation at the hearing at which the DSL calculation occurs, ex post facto principles are violated.
The Attorney General, while conceding the applicability of Stanworth, makes a number of arguments in support of the view that the Board has unlimited discretion to perform the ISL calculation at some unspecified time after the DSL calculation. Specifically, the Attorney General alleges that an ISL calculation is required "if and only if 1) the inmate is found suitable for parole, 2) the suitability finding passes administrative review and is not subject to disapproval or rescission, and 3) the inmate's DSL release date is in the future." Other than citation to the well-settled rule that the Board has great discretion in parole matters (In re Rosenkrantz (2002) 29 Cal.4th 616, 655), the Attorney General offers no authority for the argument, but instead offers alleged practical reasons why the ISL calculation should wait. The arguments, when examined, support our conclusion that the ISL and DSL calculations should occur...
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