Johnson, In re

Decision Date31 July 1992
Docket NumberNo. A056382,A056382
Citation10 Cal.Rptr.2d 460,8 Cal.App.4th 618
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re Chester JOHNSON, on Habeas Corpus.

Daniel E. Lungren, Atty. Gen., George H. Williamson, Chief Asst. Atty. Gen., Kenneth C. Young, Senior Asst. Atty. Gen., Morris Lenk, Supervising Deputy Atty. Gen., Paul D. Gifford, Deputy Atty. Gen., San Francisco, Cal., for appellants.

Steven Fama, Prison Law Office, San Quentin, for respondent.

POCHE, Acting Presiding Justice.

Penal Code section 3041.1 1 requires the full Board of Prison Terms 2 sitting in bank to review a grant of parole if the Governor makes such a request "[u]p to 90 days prior to a scheduled parole release date." Purporting to act pursuant to this authority, the Governor requested the Board to review a grant of parole to petitioner and respondent, Chester Johnson, but his request was filed less than 90 days from Johnson's scheduled parole release date. The trial court concluded that because the Governor's request was untimely under section 3041.1, the Board lacked power to review Johnson's grant of parole and it issued a writ of habeas corpus directing appellants 3 to immediately release Johnson. Concluding that the Governor's untimely action did not divest the Board of the power it always possessed to reconsider and set aside its administrative decision to grant Johnson parole, we reverse.


Johnson was convicted of first degree murder in both Los Angeles and Alameda Counties, and was imprisoned for those crimes in early 1970. His initial sentence of death was subsequently modified to life imprisonment.

After a number of hearings, the Board found in December of 1981 that Johnson was suitable for parole. 4 As required by law, the Board calculated a net term of imprisonment (318 months) and set an estimated parole release date of October 17, 1994. As a result of periodic progress hearings held over the course of the next ten years, Johnson's parole release date was advanced to December 17, 1991. Another progress hearing held May 22, 1991, purported to advance the release date by two months to October 17. While there is some dispute about whether that progress hearing decision became final and about whether the October 17, 1991, parole release date became effective, for purposes of this appeal, it is assumed that (a) the progress hearing decision did become final, and (b) Johnson's parole release date was advanced to October 17. (See fn. 6, post.)

By letter dated August 4, 1991 (i.e. 74 days before Johnson's parole release date), the Governor requested the Board pursuant to section 3041.1 to conduct an in bank review of Johnson's grant of parole. The Governor gave two reasons for his request: (1) public safety, and (2) the gravity of the offenses.

On August 13, the Board, sitting in bank "[p]ursuant to section 3041.1," reviewed the earlier decision granting parole. In its written order, a majority of the Board "determined that the grant of parole and current release dates ... may not be appropriate, and accordingly, improvident." 5 The Board scheduled for November 20 a rescission hearing for purposes of determining whether Johnson would pose "an unreasonable risk to public safety if released to parole."

On October 17, Johnson filed an administrative appeal challenging the decision of the Board to confine him beyond his scheduled release date. The Board denied the appeal on October 23. 6

Johnson then filed a writ of habeas corpus challenging the decision to detain him pending the November 20, rescission hearing. Johnson also sought immediate release from prison. The trial court granted the motion for immediate release and ultimately granted Johnson the relief he sought on his habeas petition. In so doing, the trial court concluded that: (1) the Governor did not make a timely request under section 3041.1 for a review by the Board of Johnson's grant of parole; and, (2) the record did not support rescission of Johnson's parole. This timely appeal followed.


In In re Fain (1976) 65 Cal.App.3d 376, 135 Cal.Rptr. 543 (Fain I ), this court examined the power of the Board to reconsider its administrative action granting parole and setting a release date.

We started with the proposition that the actions of the Board, including the granting of parole and the setting of a release date are purely administrative decisions, and any administrative agency has the inherent power to reconsider "unless reconsideration is precluded by law." (Fain I, supra, 65 Cal.App.3d 376, 389, 135 Cal.Rptr. 543.) Noting a prison inmate has no vested right in his prospective liberty on a parole release date (at p. 390, 135 Cal.Rptr. 543), citing, In re McLain (1960) 55 Cal.2d 78, 87, 9 Cal.Rptr. 824, 357 P.2d 1080), we found no constitutional prohibition to the reconsideration of the grant of parole. Nor were we able to locate any legislatively imposed prohibition of reconsideration by the Board of a grant of parole. (Fain I, supra, 65 Cal.App.3d at pp. 390-391, 135 Cal.Rptr. 543.) We thus concluded that the Board, as an administrative agency, has the inherent jurisdiction to reconsider its administrative decision to grant parole. (At p. 391, 135 Cal.Rptr. 543.)

We next turned to the Board's power to rescind an unexecuted grant of parole. We noted that the Board was empowered to rescind for cause; that whether cause exists to rescind parole, is a question for the Board to determine in its very broad and " 'almost unlimited' " discretion; and that while broad, the Board's discretion is not absolute but is subject to the prisoner's right to procedural due process. (Fain I, supra, 65 Cal.App.3d at pp. 391-394, 135 Cal.Rptr. 543; accord, In re Powell (1988) 45 Cal.3d 894, 910-912, 248 Cal.Rptr. 431, 755 P.2d 881.) Further we explained that the Board's decision must have a factual basis; it cannot be based on whim or rumor. ( Fain I, supra, 65 Cal.App.3d at p. 394, 135 Cal.Rptr. 543; accord, In re Powell, supra, 45 Cal.3d at p. 904, 248 Cal.Rptr. 431, 755 P.2d 881.) 7


Under our holding in Fain I, the Board had the inherent power to reconsider its grant of parole to Johnson and to rescind for cause that grant of parole. However, the Board announced that it was acting "pursuant to section 3041.1," that is, as a result of the Governor's request for reconsideration. Since now all agree that the Governor's request did not meet that section's 90-day requirement, the question is whether that untimeliness rendered the Board's decision to review Johnson's grant of parole "unlawful." The only answer can be no.

In enacting section 3041.1, the Legislature was not attempting to vest the Board with the power to reconsider a grant of parole: as we have made clear, the Board already possessed that power (see Fain I, supra, 65 Cal.App.3d 376, 390-391, 135 Cal.Rptr. 543). Instead, the Legislature's goal was to give the Governor the power to force the Board into the reconsideration process. Prior to the enactment of section 3041.1, a Governor had the same right as any other person to request the Board to reconsider a grant of parole and the Board had unfettered discretion to act upon or to disregard such a request. As a result of section 3041.1, the Governor is no longer a casual petitioner and observer of the process: now "the full board, sitting en banc" must "review the parole decision" if the Governor meets the statutory requirements.

But where as here the Governor fails to meet the statutory requirements, the Board does not lose its power to reconsider. Only the Governor has lost power and that is the power section 3041.1 holds out to a Governor who meets its requirements. The only thing the Board has lost is the statutory obligation to reconsider, not the power to do so.

Thus, when the Board in the instant case voted to review Johnson's grant of parole, it was not exercising any power that section 3041.1 gave it because section 3041.1 confers no power whatsoever upon the Board. Rather, the Board was exercising its power as an administrative agency to reconsider an administrative decision to grant parole. The Board's action was not rendered unlawful either by the failure of the Governor to satisfy section 3041.1's time line or by the fact that the Board acted on the basis of a petition that was untimely under that section.

Johnson also attempts to read section 3041.1 as imposing a temporal limit on the power of the Board to reconsider a grant of parole: the Board must act before 90 days of the inmate's parole release date. Again, Johnson is missing the thrust of the statute. The goal of the Legislature was not to alter or diminish the Board's power to reconsider, but to give the Governor power to force the Board to reconsider a grant of parole. Under the explicit language of the section, filing a request for review of a grant of parole within the 90-day period is a condition imposed only on the Governor's power to require in bank review, not upon any power of the Board. In other words, the 90-day requirement governs and empowers the Governor, not the Board.

For these reasons, we conclude that the untimeliness of the Governor's section 3041.1 request did not divest the Board of its power to reconsider its administrative decision to grant Johnson parole. The trial court erred in concluding that it did.


The trial court also determined that there was insufficient evidence in the record to support rescission of Johnson's parole. Whether there is cause for rescinding Johnson's parole remains to be decided by the Board, for the scheduled rescission hearing has yet to occur. As this court noted in the identical procedural context in Fain I, it is premature for the trial court to undertake to decide the sufficiency of the evidence to warrant rescission.

Fain I makes it very clear: "Since the [Board's]'s discretion in parole matters is 'great,' 'absolute,' and 'almost...

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