Law, In re, Cr. 16496

• Decision Date: 05 September 1973
• Docket Number: Cr. 16496
• Citation: 513 P.2d 621,10 Cal.3d 21,109 Cal.Rptr. 573
• Court: California Supreme Court
• Parties: , 513 P.2d 621 In re Herbert William LAW on Habeas Corpus.

Page 573

109 Cal.Rptr. 573

10 Cal.3d 21, 513 P.2d 621

In re Herbert William LAW on Habeas Corpus.

Cr. 16496.

Supreme Court of California,

In Bank.

Sept. 5, 1973.

Rehearing Denied Oct. 25, 1973.

Richard Rocha, Los Angeles, under appointment by the Supreme Court, for petitioner.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Kent L. Richland and Russell Iungerich, Deputy Attys. Gen., for respondent.

WRIGHT, Chief Justice.

We issued an order to show cause in response to an application by Herbert William Law, a parolee, for a writ of habeas corpus based upon the contention that he is entitled to release on bail from a 'parole hold.' The hold was requested by the Adult Authority (Authority) following petitioner's arrest on allegations that he had committed a criminal offense while on parole. Although petitioner's contention is now moot in these proceedings we deem it to raise a question of broad public interest likely to recur and so reach the issue. (In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737.) We conclude that there is no constitutional or statutory right to bail in this situation.

In 1963 petitioner was convicted of forgery (Pen.Code, § 470) and sentenced to state prison for the term prescribed by law. ¹ In 1969 the Authority refixed petitioner's term at nine years and granted parole effective November 3, 1969. On May 8, 1972, petitioner was convicted in a federal district court of aiding and abetting the uttering of a forged check and placed on probation for five years. Such conviction did not, however, result in any action by the Authority.

On June 9, 1972, petitioner was again arrested for a violation of Vehicle Code section 10851 (grand theft auto) and bail for such alleged offense was fixed but he was not released pursuant thereto. On June 29, as a result of this arrest, a parole hold was placed against him and he remained in custody. ² Thereafter, on July 26, petitioner, after a preliminary hearing at which he was represented by counsel, was held to answer in the superior court. Almost five weeks later, on August 29, petitioner was given formal notice by the Authority that no action as to a revocation of parole would occur until the conclusion of the pending criminal charges. On October 12 petitioner was found guilty and placed on probation for a period of five years, one condition of probation being that he serve one year in the county jail. Subsequently, on October 20, the Authority suspended petitioner's parole and ordered him returned to state prison for revocation proceedings. Parole was thereafter revoked and the sentence for the 1963 offense was refixed at maximum. ³

The question of whether a parolee is entitled to bail while in a parole hold status is of first while in a parole hold status right, if it exists at all, must flow from one or more of three possible sources: the Eighth and Fourteenth Amendments to the federal Constitution; article I, section 6, of our state Constitution; or state statutory authority.

In a significant break with earlier holdings the United States Supreme Court in Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 held that a parolee is entitled to certain minimum due process protections when the state attempts to revoke his parole. We have heretofore set out at length those portions of the opinion in Morrissey we deem to be particularly applicable to revocations of probation in this state and, as stated, Morrissey itself mandates certain procedural due process requirements in connection with revocations of parole. (See People v. Vickers (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313.)

To implement the requisite due process the high court in Morrissey set forth with particularity a broad scheme of procedures which embraced first a preliminary probable cause hearing and thereafter a more formal revocation hearing. Although the court did not directly deal with the question of bail at any time prior to revocation it clearly indicated that, as a federal constitutional matter, such bail was not contemplated nor mandated. The court spoke in terms of an 'arrested' parolee and based the needs for due process on the ground that his conditional liberty had been curtailed. (Morrissey v. Brewer, supra, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484.) Further, the court stated that the preliminary hearing officer should determine whether there was, in effect, probable cause to believe a violation had oc curred and that such determination '. . . would be sufficient to warrant the Parolee's continued detention.' (Id., at p. 487, 92 S.Ct. at p. 2603; italics added.)

Thus it is clear that the court had firmly in mind the fact that a parolee would be detained throughout the whole of the revocation process and that this detention was constitutionally permissible. (But see, Morrissey v. Brewer, supra, 408 U.S. 471, 491, 92 S.Ct. 2593, 33 L.Ed.2d 484, Douglas, J. dissenting.) Petitioner does not refer us to any provision of the federal Constitution from which we are able to discern even a suggestion that a parolee charged with a violation while conditionally released on parole, had a right to remain at liberty through a bail procedure similar to that in the case of those charged with but not convicted of a crime.

Article I, section 6, of the California Constitution, upon which petitioner particularly relies, states that 'All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.' This provision was intended to abrogate the common law rule that bail was a matter of judicial discretion by conferring an absolute right to bail except in a narrow class of cases. (See In re Underwood (1973) 9 Cal.3d 345, 107 Cal.Rptr. 401, 508 P.2d 721; Ex parte Voll (1871) 41 Cal. 29, 32.) However, it is clear on analysis of both the Constitution and statutory provisions which implement it that the right to bail, while absolute, pertains only to persons incarcerated on a charge of the commission of a criminal offense. (See Aguilera v. California Dept. of Corrections (1947) 247 Cal.App.2d 150, 153, 55 Cal.Rptr. 292.)

The constitutional provision, although it first states that 'All persons' shall be bailable, then makes an exception 'for capital offenses where the proof is evident or the presumption great.' The phrase 'the proof is evident or the presumption great' can be relevant only as a limitation on the bailable nature of a charged but unproven capital offense; otherwise the proof and presumption would have been conclusively and finally established. The provision thus purports to deal not with all persons in an unlimited sense but rather with all persons charged with criminal offenses as only then does the whole of the language have relevancy. We have heretofore stated that the purpose served by the provision was 'fixing bail before trial.' (People v. Anderson (1972) 6 Cal.3d 628, 657, fn. 45, 100 Cal.Rptr. 152, 493 P.2d 880.)

The constitutional provision has been implemented by statutory provisions none of which, however, contemplated bail from restraints imposed after the finality of a judgment of conviction. (See §§ 1268--1292, 1476.)

A parolee's right to relief from restraints of a parole hold cannot arise from the fact that the hold is grounded on conduct which is otherwise charged to constitute a crime for which bail may be a available. We have long recognized that an official accusation of a new criminal offense is sufficient grounds for restraining a parolee (In re Etie (1946) 27 Cal.2d 753, 756--757, 167 P.2d 203) and that the Exclusive jurisdiction over parolees has been vested in the Authority (§ 5077). Thus, to allow bail on the new offense to be grounds for release of a parolee would constitute an infringement upon a proper exercise of the statutorily declared exclusive jurisdiction of the Authority in the parole area. The Authority has a continuing interest in maintaining controls over a parolee, including his return to prison, because of 'the real risk that he may not be able to live without committing additional antisocial acts' and may not 'adjust to the demands of society. (Citation.)' (People v. Nelson, supra, 8 Cal.3d 463, 466, 105 Cal.Rptr. 314, 316, 503 P.2d 1322, 1324.)

In conclusion we do not perceive any source of authority, under the federal or state Constitutions or under applicable statutes, in support of the contention that parolees have a right to bail while in custody imposed by a parole hold.

Although the question was not directly raised whether, in a case where a parolee is arrested by reason of the alleged commission of a new criminal offense, the preliminary hearing provided for in our Penal Code in the case of a felony (see §§ 859--883) or the trial itself in the case of a misdemeanor may also serve as the probable cause hearing mandated by Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct....