Jackson, In re

Decision Date08 August 1985
Docket NumberNo. C,C
Citation703 P.2d 100,216 Cal.Rptr. 760,39 Cal.3d 464
CourtCalifornia Supreme Court
Parties, 703 P.2d 100 In re Lawrence A. JACKSON, on Habeas Corpus. rim. 24381.

John K. Van de Kamp, Atty. Gen., Beverly K. Falk, Susan L. Frierson, Donald J. Oeser and Donald L. Roeschke, Deputy Attys. Gen., for appellant.

Rowan K. Klein, Los Angeles, under appointment by the Supreme Court, and Richard Lennon, Los Angeles, for respondent.

BIRD, Chief Justice.

Does the 1982 amendment to Penal Code section 3041.5, 1 which empowers the Board of Prison Terms to schedule parole suitability hearings biennially instead of annually, violate the ex post facto clauses of the state and federal Constitutions when applied to an inmate who committed his or her offense before its effective date?

I.

Respondent, Lawrence Jackson, was convicted of first degree murder for a killing which occurred in September of 1961. He was sentenced to death. Following two penalty retrials, each resulting in a death sentence, respondent's sentence was ultimately fixed at life imprisonment, and the judgment, as modified, was affirmed. (People v. Jackson (1973) 10 Cal.3d 265, 269, 110 Cal.Rptr. 142, 514 P.2d 1222.) 2 At the time respondent committed the offense, California law did not require annual parole suitability hearings.

On July 1, 1977, the determinate sentencing law (DSL) went into effect. It provided that parole suitability hearings were to be conducted annually for prisoners for whom a parole date had not been set. ( § 3041.5, subd. (b)(2), as added by Stats.1976, ch. 1139, § 281.8, p. 5152.) That provision was made applicable "to all prisoners serving sentence in the state prisons on July 1, 1977...." ( § 3065, as amended by Stats.1977, ch. 2, § 7, p. 10.)

In 1982, the Legislature amended section 3041.5 to provide an exception to the annual parole suitability hearing requirement. The amendment permits the Board of Prison Terms (Board) to "schedule the next hearing no later than ... two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year and states the bases for the finding...." ( § 3041.5, subd. (b)(2)(A), as amended by Stats.1982, ch. 1435, § 1, p. 5474.)

Respondent appeared before the Board on February 17, 1983, for parole consideration. The Board found him unsuitable for parole and scheduled his next parole hearing two years later under the authority of the new amendment. The Board stated three reasons in support of its decision: (1) the crime was extremely brutal and senseless; (2) respondent had been convicted of two assaults prior to the murder; and (3) psychiatric evaluations were not supportive of release.

In October 1983, after exhausting his administrative remedies (see In re Dexter (1979) 25 Cal.3d 921, 925, 160 Cal.Rptr. 118, 603 P.2d 35), respondent sought habeas corpus in the superior court. He contended that the Board unlawfully postponed his next parole suitability hearing and did not give sufficient reasons for the postponement. The superior court granted the writ in part and found that the application of the 1982 amendment to Jackson violated the proscription against ex post facto laws. The court ordered that the Board provide him with annual parole consideration hearings. The People appeal this ruling. 3

II.

The parole consideration procedures are governed by section 3040 et seq. and apply to all inmates not serving a determinate sentence. ( § 1170 et seq.; see §§ 3041, 3000.) Once such an inmate has served sufficient time to be eligible or soon eligible for parole, he or she receives notice that a parole suitability hearing before a Board hearing panel will be held. ( §§ 3041, 3041.5, 3042.) The inmate is afforded a variety of rights before and during the hearing. These include the right (1) to examine nonconfidential documents in the prison file and answer them in writing in advance of the hearing, (2) to reasonable assistance in preparing for the hearing, (3) to ask and answer questions and present evidence at the hearing, (4) to an impartial hearing panel, and (5) to receive a record of the proceedings and a copy of the hearing panel's written decision. Indigent prisoners serving life sentences are entitled to be represented by counsel provided at state expense. ( §§ 3041.5, 3041.7, 3042; Cal.Admin.Code, tit. 15, §§ 2245-2256.)

Following the hearing, the Board must set a date for release on parole unless it determines "that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration...." ( § 3041, subd. (b).) If the Board finds the inmate unsuitable for parole, the next hearing is normally scheduled for the following year. ( § 3041.5, subd. (b)(2).) However, if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the year following the denial of parole, the next hearing may be postponed for up to one year. The board must "state[ ] the bases" for the postponement. ( § 3041.5, subd. (b)(2)(A).) 4 It is this provision which is at issue here.

III.

The state and federal Constitutions prohibit the legislative enactment of any ex post facto law. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) Whether a given law is within this prohibition depends upon the effect of the law. (People v. Smith (1983) 34 Cal.3d 251, 260, 193 Cal.Rptr. 692, 667 P.2d 149.) "[T]wo critical elements must be present for a criminal or penal law to be ex post facto; it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." (Weaver v. Graham (1981) 450 U.S. 24, 29, fns. omitted, 101 S.Ct. 960, 964, 67 L.Ed.2d 17.) It is undeniable that the 1982 amendment is being applied retrospectively, since it became operative more than 20 years after respondent's offense. The sole question presented, therefore, is whether the amendment disadvantages inmates in respondent's position.

The Attorney General has advanced three reasons why application of the postponement provision should be upheld. First, he argues that since respondent was not statutorily entitled to periodic parole review when he committed his offense, any subsequent reduction in the frequency of such review does not operate to his disadvantage. Next, he claims that since respondent possessed no "vested right" to parole, he has not been disadvantaged by elimination of mandatory annual review. Finally, he contends that the postponement provision is "procedural" and outside the ex post facto prohibition.

In 1961, when respondent committed the killing, there was no guarantee as to the frequency with which an inmate would be considered for parole. At that time, section 3041, the only statute applying to parole eligibility, provided simply that "[i]n any case the matter of parole may be determined by the Adult Authority at any time after the expiration of six months from and after the actual commencement of such imprisonment; provided, however, that where the maximum sentence is five years or less, such determination may be made by the Adult Authority after a period of 90 days." (Stats.1957, ch. 2256, § 58, pp. 3934-3935.) Subsequently, case law imposed a requirement that an inmate's sentence be redetermined periodically. (See In re Schoengarth (1967) 66 Cal.2d 295, 302, 57 Cal.Rptr. 600, 425 P.2d 200, and cases cited.) By 1972, the Adult Authority had instituted a policy whereby "except in certain extreme cases where reconsideration of parole may be postponed for two or three years, the applications of all inmates should be reviewed at least annually." (In re Minnis (1972) 7 Cal.3d 639, 648, 102 Cal.Rptr. 749, 498 P.2d 997.)

With the enactment of the DSL, annual parole consideration was given to all indeterminately sentenced inmates, whatever the date of their crimes. (Ante, at p. 761 of 216 Cal.Rptr., at p. ---- of --- P.2d.) 5 Thus, for ex post facto purposes, this case will be analyzed as if annual review were in effect at the time respondent committed his offense.

A few Courts of Appeal have reached similar conclusions in analogous contexts. In re Bray (1979) 97 Cal.App.3d 506, 158 Cal.Rptr. 745 is illustrative. There, a prisoner sentenced under the indeterminate sentencing law (ISL) was serving time for a parole violation when the DSL became effective. He was released from custody under the terms of the new law, which provided for a maximum of six months' imprisonment on a parole violation. ( § 3057, Stats.1977, ch. 165, § 58, p. 669.) As he was about to be discharged from parole supervision after having served a combined maximum of 18 months on parole or in custody, the law was changed. This time, the parole period was increased to three years. When the Board applied the new amendment and failed to honor his discharge date, Bray sought habeas corpus relief.

The Court of Appeal granted the petition. It rejected the argument that the new amendment did not impose any more onerous a burden than the law in effect at the time of the offense. (Bray, supra, 97 Cal.App.3d at p. 514, 158 Cal.Rptr. 745.) The court found it irrelevant that Bray's original ISL status gave him no right to an 18-month parole supervision or custody limit, since the Legislature "expressly conferred the benefits of the DSL on petitioner and placed him in the position as if the DSL parole provisions were the law at the time he committed his offense." (Id., at p. 517, 158 Cal.Rptr. 745, emphasis added.)

Similar reasoning supported the Court of Appeal's holding in In re Thomson (1980) 104 Cal.App.3d 950, 164 Cal.Rptr. 99. There, the court held that a three-year maximum parole period could not be imposed on an ISL inmate to whom the benefits of a...

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