In re Schmidt

• Decision Date: 28 September 2006
• Docket Number: No. H029842.,H029842.
• Citation: 49 Cal.Rptr.3d 477,143 Cal.App.4th 694
• Court: California Court of Appeals Court of Appeals
• Parties: In re Donald SCHMIDT, on Habeas Corpus.

49 Cal.Rptr.3d 477

143 Cal.App.4th 694

In re Donald SCHMIDT, on Habeas Corpus.

No. H029842.

Court of Appeal, Sixth District.

September 28, 2006.

As Modified October 3, 2006.

Bill Lockyer, Attorney General, James M. Humes, Chief Assistant Attorney General, Frances T. Grunder, Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Scott C. Mather, Deputy Attorney General, for Plaintiff and Appellant.

Michael A. Kresser, under appointment by the Court of Appeal Sixth District Appellate Program, Santa Clara, for Defendant and Respondent.

BAMATTRE-MANOUKIAN, Acting P.J.

Donald Schmidt, age 34, seeks his release on parole from the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (formerly, the Department of the Youth Authority).¹ In 1989 the juvenile court sustained a Welfare and Institutions Code section 602² petition alleging that 16-year-old Schmidt had committed sodomy and first degree murder of a three-year-old girl. Schmidt was committed to the CYA on October 4, 1989. At the age of 25 his commitment was extended by trial court order pursuant to section 1800, which at that time authorized a two-year extension of commitment where discharge of a person from the control of the CYA "would be physically dangerous to the public because of the person's mental or physical deficiency, disorder, or abnormality." (Former § 1800; In re Howard N. (2005) 35 Cal.4th 117, 126, 24 Cal Rptr.3d 866, 106 P.3d 305.)³ Subsequently, Schmidt's CYA commitment was extended under section 1800 for three additional two-year periods. His current two-year commitment began on November 8, 2004, and expires on November 8, 2006.

On June 21, 2005, the Youthful Offender Parole Board (Parole Board)⁴ ordered that Schmidt be released on parole. Six days later, on June 27, 2005, the Parole Board vacated its parole release order on the ground that it did not have the authority to parole a person committed under section 1800. Schmidt then filed a petition for a writ of habeas corpus in which he sought reinstatement of the original parole release order. The trial court granted the petition on the ground that under the statutory scheme for extended commitment, section 1800 et seq., the Parole Board maintained control of the committed person subject to the provisions authorizing parole and discharge.

On appeal, the People contend that the Parole Board acted lawfully in vacating its original parole order because the statutes governing extended commitment, section 1800 et seq., do not authorize release on parole. Schmidt disagrees. He construes the statutes governing extended commitment to provide that the CYA's control over a person committed under section 1800 includes the power to release the committed person on parole. After carefully examining the relevant statutes, we conclude that the CYA is not authorized to release on parole a person committed under section 1800.

However, we also determine that the CYA is authorized under the statutory scheme for extended commitment to conditionally release Schmidt during his current extended commitment period. Therefore, we will reverse the order granting Schmidt's petition for a writ of habeas corpus and remand the matter to the trial court with instructions to vacate its order reinstating the June 21, 2005, parole release order and to issue a new order remanding the matter to the Parole Board for further proceedings in accordance with due process and the views expressed in this opinion.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. CYA Commitment Proceedings

On January 4, 1989, a section 602⁵ petition was filed alleging that Schmidt had committed the sodomy and first degree murder of a three-year-old girl.⁶ The evidence presented at the jurisdictional hearing showed that Schmidt was 16 years old on December 30, 1988, when he visited the home where the victim, M., resided with her family. While M. and her two-year-old sister were taking a bath, their mother allowed Schmidt to enter the bathroom and wash his hair. While Schmidt was still in the bathroom, M.'s mother took M.'s sister out of the bathtub and went to a bedroom to get clothing. M. remained alone in the bathtub.

When M.'s mother came out of the bedroom five minutes later, she encountered Schmidt carrying M. from the bathroom and exclaiming, "I'm sorry. I didn't mean to do it." M. was taken to the hospital by ambulance but died two days later, on January 1, 1989. The autopsy showed that M. died as the result of a brain injury caused by drowning. Additionally, the autopsy revealed a recently inflicted two and one-half inch hemorrhage consistent with forcible penetration of M.'s rectum by either a penis or a dildo-type object.

At the end of the jurisdictional hearing the trial court found true the allegations of sodomy and first degree murder (based on homicide during the act of a felony sexual assault). Schmidt was committed to the CYA for a maximum life term. After two appeals (In re Donald S., supra, H006500; In re Donald S., supra, H009440), this court struck the first degree murder finding and affirmed a finding of second degree murder.

Schmidt was not released from the CYA when he reached the age of 25 in March 1997. His commitment was extended for two years pursuant to section 1800⁷ by a February 1997 trial court order. Before the extended commitment ended on February 25, 1999, the Parole Board initiated proceedings to release Schmidt on parole. The district attorney opposed Schmidt's release and retained a psychiatrist who reported that Schmidt was physically dangerous to the public due to a mental disorder or abnormality. At a hearing held January 29, 1999, the Parole Board considered the opinion of the district attorney's psychiatrist as well as the opinion of a CYA psychologist who recommended that Schmidt be released on parole. After the hearing, the Parole Board denied parole and recommended an expedited section 1800 proceeding.

On February 8, 1999, the district attorney filed a section 1800 petition to extend Schmidt's commitment for a second two-year period and the matter proceeded to a jury trial. After a mistrial, a second jury found in September 1999 that Schmidt was physically dangerous to the public and the trial court extended Schmidt's CYA commitment for two more years. Schmidt's trial testimony included his admission that he picked M. as his victim because she could not fight back and because he felt like destroying her life in the same way his own life had been destroyed by child abuse. He decided to sodomize M. only after he entered the bathroom, and he thought of his girlfriend in order to get an erection. Schmidt further admitted that he left M. in the tub, went to the kitchen and smoked a cigarette, and then returned to the bathroom and pretended to discover that M. had accidentally drowned. CYA staff testified that Schmidt had given varying accounts of his offense, including telling them that he had held M. underwater to keep her from crying and that she was flailing when he sodomized her. On appeal, this court affirmed the order extending Schmidt's commitment to the CYA. (People v. Schmidt, supra, H020580, 2002 WL 31270258.)

Schmidt's CYA commitment was further extended by two subsequent section 1800 proceedings.⁸ His current two-year commitment commenced on November 8, 2004, after he waived a section 1800 hearing. According to Schmidt, he "submitted to the [section 1800] petition knowing that his [CYA] treatment team was planning to recommend that he be paroled in `maybe a few more months.'" Schmidt's commitment expires on November 8, 2006.

B. Current Parole Proceedings

In February 2005, the CYA treatment team recommended that Schmidt be paroled at the time of the parole hearing that was to be held in May 2005. The recommendation was included in a parole consideration hearing report, dated February 7, 2005. In the report, the treatment team reviewed the circumstances of Schmidt's offense, his current behavioral issues, his exemplary interactions with peers and staff, his educational and employment background, and other matters relevant to the team's parole recommendation. The report concluded, "Donald has completed all of his Board ordered and staff identified group requirements several times over. He has utilized every program the Youth Authority has to offer with the exception of parole supervision. The treatment team recommends parole at his Projected Board Date of May 2005 in order to take advantage of parole services and support during his reintegration into the community."

Thereafter, in a letter dated February 18, 2005, the Parole Board notified the trial court, the public defender, the county sheriff, and the district attorney that the Board would review Schmidt for consideration of parole on or after 30 days. After the parole hearing was held the Parole Board issued its June 21, 2005, order releasing Schmidt on parole "on or after 6/21/05." The order specified numerous conditions of parole, including, among other things, placement in the Plaza Hotel, electronic monitoring, participation in a "substance/anger management program," 80 hours of community service, drug and alcohol testing, and counseling. Additionally, Schmidt was prohibited from being present in the area of nightclubs and where minors congregate. He was also prohibited from associating with minors or using the Internet to contact minors.

However, Schmidt was not released on parole in accordance with the June 21, 2005, order. On June 23, 2005, the Parole Board placed a stay on Schmidt's release. Four days later, on June 27, 2005, the Parole Board held a "Special Agenda," "nonappearance" hearing. The Parole Board then issued an order dated June 27, 2005, which stated, "Review of [section] 1800 indicates that the [Parole] Board does not have parole authority/discretion over court commitment orders pursuant to [section] 1800. Therefore, the Board order and ...