In re Schoenfeld

• Decision Date: 28 February 2012
• Docket Number: A131917
• Parties: In re RICHARD SCHOENFELD on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

In re RICHARD SCHOENFELD on Habeas Corpus.

A131917

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Dated: February 28, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Petitioner Richard Schoenfeld (Schoenfeld) challenges the determination of his parole release date by the Board of Parole Hearings (the Board) under regulations applicable to the indeterminate sentencing law (ISL) (former Pen. Code, § 1168, repealed eff. Jan. 1, 1977¹ ). (Former Cal. Admin. Code, tit. 15, § 2100 et seq. [Prior Board Rules or PBR].) Over 34 years ago, Schoenfeld pleaded guilty to 27 counts of kidnapping for ransom in the notorious Chowchilla mass kidnapping case. He was 23 years old at the time of his crimes, and was sentenced under the then-existing ISL and Youthful Offender Act (former § 1202b, repealed by Stats. 1976, ch. 1139, § 274, eff. July 1, 1977). In accordance with those laws, Schoenfeld was ultimately sentenced by the superior court to 27 life terms, running concurrently, with eligibility for parole to be considered after a minimum of six months. The sentencing court recommended nine years as an appropriate time to serve for a youthful offender. Over the next three decades, on 19 occasions the Board found him not suitable for parole, in large part because of the seriousness of his offenses.

At Schoenfeld's 20th parole hearing in 2008, the Board found he "would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison," and was therefore suitable for release on parole. While again acknowledging the seriousness of his crimes, and after carefully reviewing the record of Schoenfeld's 31-year tenure in prison, the Board found Schoenfeld had accepted full responsibility for his crimes, and over his many years in prison had, among other positive conduct, earned his Associate of Arts and Bachelor of Science degrees, consistently received exceptional work reports, and successfully participated in a multitude of counseling programs, including peer counseling and alternatives to violence. In addition, no recent disciplinary actions had been taken against him, he had no prior criminal history, and he presented solid, realistic parole plans. The Board therefore found him rehabilitated and suitable for parole. After later considering whether to rescind its parole suitability decision, the Board again found Schoenfeld suitable for release on parole.

Because Schoenfeld's crimes were committed while the ISL was in effect, the Board had to determine the period of his confinement in prison under both the ISL Prior Board Rules and the regulations applicable to the subsequently enacted determinate sentencing law (DSL). The shorter term had to be applied to Schoenfeld. (In re Stanworth (1982) 33 Cal.3d 176, 188.) While the Board determined his period of confinement under the DSL regulations, it did not do so under the ISL Prior Board Rules until Schoenfeld filed a petition for writ of habeas corpus, which this court granted. (See In re Schoenfeld (Aug. 4, 2010, A127680 [nonpub. opn.].) The Board then set a "total" ISL period of confinement of 45 years 4 months, which included the maximum period under the Prior Board Rules matrix for the crimes, plus a two-year upward adjustment for each of the remaining 26 counts of which he had been convicted.

In the instant writ proceeding, Schoenfeld challenges the Board's determination of his ISL period of confinement on several grounds, one of which is that the upward adjustment was not permissible under the ISL Prior Board Rules. Following our order to show cause, the return and traverse framed no disputed factual issues. (People v. Romero (1994) 8 Cal.4th 728, 738; In re Hochberg (1970) 2 Cal.3d 870, 873-874, fn. 2.) Havingheard oral argument, we now agree with Schoenfeld that in upwardly adjusting his period of confinement the Board did not set his parole release date in accordance with the governing Prior Board Rules. Those adjustments must be stricken as a matter of law, and Schoenfeld's base period of confinement has run. We therefore grant Schoenfeld's petition for writ of habeas corpus.

STATEMENT OF FACTS AND PROCEDURAL HISTORY²

In 1977, Schoenfeld, his older brother James Schoenfeld, and Frederick Woods each entered pleas of guilty to 27 counts of kidnapping for ransom (§ 209), while reserving the right to contest the disputed allegations of bodily harm in a bifurcated proceeding before the trial court without a jury. Following a contested hearing the court decided that the kidnap victims named in three of the 27 charged counts (counts three, five, and seven) suffered "bodily harm," and sentenced all three defendants to terms of life imprisonment on each of the 27 counts of kidnapping, but without possibility of parole as to three of the counts found to involve "bodily harm," the sentences to be served concurrently. (People v. Schoenfeld, supra, 111 Cal.App.3d 671, 675-676.) Petitioner alone was sentenced pursuant to the then-existing provisions of the Youthful Offender Act (former § 1202b, repealed by Stats. 1976, ch. 1139, § 274, eff. July 1, 1977) to concurrent life terms with a minimum term of six months on each count. (Schoenfeld, supra, 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.

In 1980, this court concluded in People v. Schoenfeld, supra, 111 Cal.App.3d 671, 689, "that the evidence of the injuries sustained does not constitute bodily harm within the meaning of Penal Code section 209 as a matter of law." Accordingly, we modified the judgment of conviction "by striking the findings of bodily harm and determination of parole ineligibility" relating to counts three, five and seven, and struck the associated "sentences of life imprisonment without possibility of parole." (Schoenfeld, supra, at pp.689, 690.) The judgment of conviction and sentences of life imprisonment were affirmed. (Id. at p. 690.)

At Schoenfeld's 20th parole consideration hearing, and over 30 years after the kidnapping crimes were committed, the Board hearing panel determined on October 30,

2008, that he was suitable for parole. (Schoenfeld v. Board of Parole Hearings (Dec. 29, 2010, A128543) [nonpub. opn.] p. 2.) In finding Schoenfeld was "suitable for release and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison," the Board hearing panel considered the "nature and gravity of the commitment offense," including the fact "multiple victims" were involved, but it found parole was warranted by the undisputed evidence of his unfailingly admirable conduct in prison, his strong family and community support, his stable social history, lack of criminal history, and his realistic parole plan. The Board calculated the period of Schoenfeld's imprisonment as a life prisoner under the regulations applicable to the DSL (Cal. Code Regs., tit. 15, §§ 2282-2290) to be in excess of 187 years.³ On March 10, 2009, the Board notified Schoenfeld that the panel's parole suitability finding had been approved and was final. (Schoenfeld v. Board of Parole Hearings (Dec. 29, 2010, A128543) [nonpub. opn.] p. 2.)

Schoenfeld challenged the Board's calculation of his parole release date - his period of imprisonment - by petition for writ of habeas corpus filed in the Alameda County Superior Court. (In re Schoenfeld (Aug. 4, 2010, A127680 [nonpub. opn.], p. 2.) Specifically, he claimed that the Board failed to simultaneously calculate his ISL period of confinement under the Prior Board Rules, and failed to impose the earlier of the two calculated release dates, required by In re Stanworth, supra, 33 Cal.3d 176, 188.

After the trial court denied the prior petition on December 21, 2009, Schoenfeld pursued relief from this court. We found "that the Board panel failed to understand its role, responsibility, and discretion in calculating a release date for Schoenfeld under the DSL regulations," and "that application of the DSL regulations promulgated after hiscommitment offense to the calculation of his parole release date violates ex post facto prohibitions of the United States and California Constitutions." (In re Schoenfeld (Aug. 4, 2010, A127680 [nonpub. opn.], p. 3.) We thus concluded that "the Board erred when it failed to simultaneously calculate his term under governing regulations applicable to the ISL, and thereafter failed to impose the earlier of the two calculated release dates." We ordered the Board "to immediately set a hearing to take place on or before September 8, 2010, to recalculate Richard Schoenfeld's release date under both ISL and DSL regulations and thereafter impose the earlier of the two release dates." (In re Schoenfeld (Aug. 4, 2010, A127680 [nonpub. opn.], p. 6.)

In a somewhat convoluted series of events, while the prior petition was pending the Board first scheduled a hearing to determine petitioner's ISL period of confinement, then cancelled the hearing, and apparently rescheduled an ISL parole release date calculation hearing for August 14, 2009. (In re Schoenfeld (Aug. 4, 2010, A127680 [nonpub. opn.], p. 2.) Thereafter, instead of proceeding to determine his ISL release date, the Board panel declared that the 2008 decision finding Schoenfeld suitable for parole " 'may be an improvident grant based upon fundamental errors or omissions of fact,' " and ordered, or at least recommended, that a rescission hearing be conducted.⁴ (Schoenfeld v. Board of Parole Hearings (Dec. 29, 2010, A128543) [nonpub. opn.] p. 3.)

A rescission hearing was set by the Board, but repeatedly postponed. Schoenfeld...