Love, In re

• Citation: 520 P.2d 713,11 Cal.3d 179,113 Cal.Rptr. 89
• Decision Date: 11 April 1974
• Docket Number: Cr. 16866
• Court: United States State Supreme Court (California)
• Parties: , 520 P.2d 713 In re Dennis Reed LOVE on Habeas Corpus.

Page 89

113 Cal.Rptr. 89

11 Cal.3d 179, 520 P.2d 713

In re Dennis Reed LOVE on Habeas Corpus.

Cr. 16866.

Supreme Court of California In Bank.

April 11, 1974.

Michael Remington, James A. Jackman and Remington & Jackman, Fullerton, for petitioner.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., S. Clark Moore and Russell Iungerich, Deputy Attys. Gen., for respondent.

WRIGHT, Chief Justice.

We issued an order to show cause in response to the application of Dennis Reed Love for a writ of habeas corpus on allegations that the Adult Authority (Authority) had denied petitioner the right to counsel at hearings on both his prerevocation and formal revocation of parole. Additionally, petitioner contends that he was not afforded full disclosure of relevant evidence relating to the alleged violations of parole as mandated by Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and In re Prewitt (1972) 8 Cal.3d 470, 105 Cal.Rptr. 318, 503 P.2d 1326. We conclude that petitioner's contention based upon the alleged absence of full disclosure is meritorious, and although we reject petitioner's contention that he was denied his right to counsel at the prerevocation and formal revocation hearings, we conclude that a parolee may, in particular circumstances, be entitled to counsel at future revocation hearings. (See Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656.)

Petitioner was convicted of second degree murder in 1967 and was sentenced to state prison for a term of five years to life. In March 1971 the Authority fixed petitioner's term at nine years and in March 1972 petitioner was released on parole. On December 12, 1972, petitioner was arrested for alleged violations of parole involving the consumption of alcoholic beverages and leaving the state without the prior permission of his parole officer. ¹ In support of these allegations his parole officer (Spearance) stated that petitioner had told another officer (Hurst) that petitioner had left the state and had also violated the 'no drink' condition.

Petitioner's prerevocation hearing was scheduled for January 31, 1973. He retained counsel and sought to have both Officers Spearance and Hurst present at the hearing. Only Spearance appeared. Petitioner's counsel was present at the hearing but was not permitted to participate in a representative capacity. At the close of argument the hearing officer concluded that there was probable cause to hold petitioner for a formal revocation hearing. The same events occurred, without significant exception, at the formal hearing at which petitioner's parole was revoked. Petitioner's counsel appeared as a witness but again was denied the right to act in a representative capacity.

At the time of the prerevocation hearing petitioner's attorney was told by Spearance and the hearing officer that a 'special confidential report' had been prepared by Hurst. Despite repeated requests by petitioner and his attorney a copy of this report was never made available to them. Petitioner asserts that the revocation was necessarily based upon materials contained in the undisclosed report, as he had been advised by the hearing officer at the prerevocation hearing that the recommendation would be against revocation.

The People acknowledge the existence of the alleged report. It appears from affidavits submitted by the People, however, (1) that the report contains no information different from that adduced at the hearings; (2) that the prerevocation hearing officer did not base his decision to hold petitioner for a revocation hearing on the content of the report; and (3) that the revocation of parole at the formal hearing was not based on the content of the report. As the allegations contained in the affidavits have not been traversed they are deemed admitted and are considered to be true and dispositive of any factual conflicts which their substance encompasses. (In re Saunders (1970)2 Cal.3d 1033, 1048, 88 Cal.Rptr. 633, 472 P.2d 921; People v. Sherman (1932) 127 Cal.App. 417, 419, 15 P.2d 881; see also, Witkin, Cal.Criminal Procedure (1963) § 825, pp. 790--791.) Allegations in the petition which are specifically admitted in the return are likewise deemed to be true. (In re Saunders, supra, 2 Cal.3d at p. 1048, 88 Cal.Rptr. 633, 472 P.2d 921.) For purposes of the matter before us it is established: (1) that a special confidential report was prepared by Officer Hurst; (2) that the report relates to the alleged parole violations; and (3) that the report was not used in the revocation determination.

Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 requires that certain minimal due process protections be afforded a parolee facing revocation. Among such protections is the right to have 'evidence against him' disclosed subject only to a right to withhold the identity of an informant if the hearing officer has reason to believe that disclosure would subject the informant to a risk of harm. (Id., at p. 489, 92 S.Ct. 2593, 33 L.Ed.2d 484.)

We have recently considered this requirement in the case of In re Prewitt, supra, 8 Cal.3d 470, 105 Cal.Rptr. 318, 503 P.2d 1326. In Prewitt the Authority rescinded a grant of parole prior to the prisoner's actual release on parole. After first concluding that Morrissey applied to such a rescission, we held that except where an informant might be endangered by the disclosure the prisoner must be apprised of the nature and scope of the information in the Authority's possession in order that he might effectively respond to the charges against him. Although Prewitt deals with documents submitted pursuant to sections 3022 and 3042--provisions dealing with term-fixing and parole-granting--the rule is necessarily applicable with equal or greater force to documents submitted pursuant to statutes and administrative regulations concerning the very revocation procedures with which Morrissey was concerned.

The confidential report in the instant case was submitted to the Department of Corrections ² in response to petitioner's arrest for alleged parole violations with the knowledge of the author that such violations would be urged as the basis for revocation. This is the very type of document, absent a privilege not to disclose, which should have been made available to petitioner. The fact that the document was not relied on by the Authority in the decisional process is irrelevant. The document might have contained material which would have tended to exonerate petitioner, or it might have enabled petitioner to better prepare a defense and assert matters in mitigation. The subsequent nonuse of the document does not insulate it from disclosure as to so hold would allow the Authority to withhold documents helpful to a parolee simply by not using them in the decisional process. ³

Thus, absent some privilege, the Authority should have provided petitioner with a copy of the report. It is clear, however, that the privilege recognized in Morrissey where an informant would be endangered does not here apply. Hurst's identity and whereabouts were known to petitioner as was the fact that Hurst was the author of the report. The only further ground suggested in support of nondisclosure is the claimed confidentiality of the report. However, we have specifically rejected the 'confidentiality' privilege in Prewitt whether the confidentiality stemmed from an internal classification system or from the fact that the information was given to the Authority in confidence. (In re Prewitt, supra, 8 Cal.3d 470, 476, 105 Cal.Rptr. 318, 503 P.2d 1326) There is likewise nothing in Morrissey which suggests the asserted confidentiality privilege in the instant case.

We conclude that, irrespective of the fact that the report was not used by the Authority in reaching its decision to revoke parole, petitioner had a right as a matter of due process to its disclosure. Petitioner is entitled to a new revocation hearing prior to which a copy of the report must be provided. ⁴

Petitioner also contends that he was denied due process at both the prerevocation and formal revocation hearings in that he was not allowed to be represented by retained counsel. We have previously held that a parolee has no right to counsel, appointed or retained, in parole revocation hearings. (In re Tucker (1972) 5 Cal.3d 171, 178--179, 95 Cal.Rptr. 761, 486 P.2d 657.) ⁵

In the recent case of Gagnon v. Scarpelli, supra, 411 U.S. 778, 93 S.Ct. 1756 the United States Supreme Court spoke to the question of whether there is a due process right to counsel at probation revocation hearings. It answered the question in a conditional affirmative. Gagnon involved a probationer who was re-arrested on a new criminal charge. He was also charged with violations of his conditions of probation in that he associated with persons known to be criminals, and he had been arrested for burglary. He admitted that he was involved in the burglary but argued that the admission had been coerced. A near unanimous court held that there was a limited right to counsel in certain revocation situations, and that the revoking authority had discretion to determine which cases involved such a need. (Id. at p. 790, 93 S.Ct. 1756.) The court further held (Id., at p. 782, 93 S.Ct. 1756) that there was no material distinction between the probation and parole revocation situations, reflecting our earlier holding to the same effect in People v. Vickers, supra, 8 Cal.3d 451, 458, 105 Cal.Rptr. 305, 503 P.2d 1313.

The high court recognized that the effectiveness of the rights mandated in Morrissey may in some instances '. . . depend on the use of skills which the . . . parolee is unlikely to possess . . . where the presentation . . . (of a defense) . . . requires the examining or cross-examining of witnesses or the offering or dissecting of complex documentary evidence.' (Gagnon v. Scarpelli, sup...