Pope v. Superior Court

• Decision Date: 17 July 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Lester J. POPE, Superintendent, California Medical Facility at Vacaville, Petitioner, v. SUPERIOR COURT OF SOLANO COUNTY, Respondent; Donald E. MOZINGO, Real Party in Interest. Civ. 28095.

Page 483

88 Cal.Rptr. 483

9 Cal.App.3d 636

Lester J. POPE, Superintendent, California Medical Facility at Vacaville, Petitioner, v. SUPERIOR COURT OF SOLANO COUNTY, Respondent Donald E. MOZINGO, Real Party in Interest.

Civ. 28095.

Court of Appeal, First District, Division 3, California.

July 17, 1970.

As Modified Aug. 13, 1970.

Hearing Denied Oct. 1, 1970.

Thomas C. Lynch, Atty. Gen. of the State of California, Derald E. Granberg, Gloria F. DeHart, Deputy Attys. Gen., San Francisco, for petitioner.

Paul Ligda, Public Defender, County of Solano, William D. Hubbard, Jr., Deputy Public Defender, Fairfield, for real party in interest.

Garry, Dreyfus, McTernam & Brotsky, Benjamin Dreyfus, San Francisco, amici curiae.

DRAPER, Presiding Justice.

This case requires definition of the scope of court review of proceedings of the Adult Authority resulting in revocation of parole.

Donald E. Mozingo, the real party in interest, pleaded guilty to second degree robbery, and entered prison in 1965 under that conviction. He was paroled in 1968. Nine months later he was convicted of drunk driving, and his parole was suspended. At an Adult Authority hearing held July 29, 1969, he pleaded guilty to this charge, and his parole was revoked. He was again paroled November 25, 1969. On January 6, 1970, he notified his parole agent that he had been involved in a barroom brawl January 4. He was incarcerated January 8 for parole violation. Charges filed January 23 alleged that Mozingo violated his parole 'by assaulting Herman Bowman with his fists, feet and a pool cue, causing him grievous bodily harm on or about 1--4--70.' Copy of this charge was served upon him. Hearing before the Adult Authority was held March 13, and his parole was revoked. Before the revocation, on March 9, Mozingo applied to the Superior Court of Solano County for habeas corpus. The next day, that court ordered a return to be filed. By order of April 1, the court ordered an evidentiary hearing to be held before it April 20, and directed that Mozingo and all witnesses to the alleged assault be produced to testify. The public defender was appointed to represent Mozingo, and was authorized to subpoena witnesses. Upon application of petitioner Pope, we issued alternative writs of prohibition and mandate and stayed the scheduled hearing. The matter has been fully argued.

Real party in interest argues that the remedy by appeal is adequate, thus barring resort to extraordinary writs. But it is doubtful that the order below, which does not issue habeas corpus but merely directs an evidentiary hearing, is appealable. For the People to await the ultimate result in habeas corpus before appeal will require substantial time and expense in trial of the fact issues. The Solano County court may have determined that its calendar will permit of such use of its time. We note, however, that in at least two cases heard here at the same time as this one (Nos. 28197 and 28198) that court, by another judge, has ordered evidentiary hearings in the superior courts of other counties. We must be concerned with the problems of calendar congestion in those courts to which like hearings have been transferred without consultation or consent by them.

It is the practice of the Adult Authority, on suspension of parole, to order the parolee returned to Vacaville for hearing on revocation. Thus the vast majority of revocations occur in Solano County, and if the superior court there has an erroneous view of the applicable law, it should be corrected promptly, ere evidentiary hearings are ordered in counties throughout the state. In any event, we determined this question when we issued the alternative writs (City & County of San Francisco v. Superior Court, 53 Cal.2d 236, 243, 1 Cal.Rptr. 158, 347 P.2d 294; see 3 Witkin, Calif.Proc., pp. 2503--4.)

Although prohibition is a jurisdictional writ, it will lie when jurisdiction in the fundamental sense exists, but the court threatens to act beyond the limitations imposed upon it. (City & County of San Francisco v. Superior Court, supra; Abelleira v. District Court of Appeal, 17 Cal.2d 280, 288, 291, 109 P.2d 942.)

The power to parole prisoners is vested in the Adult Authority (Pen.Code § 3040) which is authorized to establish and enforce rules and regulations under which prisoners may be paroled (Pen.Code § 3052). 'Prisoners on parole shall remain under the legal custody of the department and shall be subject at any time to be taken back within the inclosure of the prison' (Pen.Code § 3056). The authority has 'full power to suspend, cancel or revoke any parole without notice, and to order returned to prison any prisoner upon parole' (Pen.Code § 3060). This provision is valid and no due process requirement is violated by the absence of notice and hearing (In re McLain, 55 Cal.2d 78, 84--85, 9 Cal.Rptr. 824, 357 P.2d 1080). Nor is the parolee entitled to be represented by counsel at the revocation hearing (In re Schoengarth, 66 Cal.2d 295, 304, 57 Cal.Rptr. 600, 425 P.2d 200; see Eason v. Dickson, 9 Cir., 390 F.2d 585, cert. den. 392 U.S. 914, 88 S.Ct. 2076, 20 L.Ed.2d 1373). The authority's rules, however, require notice and hearing. Under those rules, Mozingo was served well in advance with copy of the charge against him, and was fully heard.

The statute, however, does provide that 'No parole shall be suspended or revoked without cause, which cause must be stated in the order suspending or revoking the parole' (Pen.Code § 3063). The order revoking Mozingo's parole clearly specifies the 'cause' for its action, i.e., the assault upon Bowman.

In light of the statutory requirement, it seems obvious that some form of court review is available to determine whether 'cause' was shown at the authority hearing. Habeas corpus, for which Mozingo applied to the trial court, 'is a proper remedy to test the propriety of proceedings before the Adult Authority' (In re Streeter, 66 Cal.2d 47, 49, 56 Cal.Rptr. 824, 825, 423 P.2d 976, 977). The form and nature of that review, however, is the problem before us. Should it, as held by the trial court, be a full-dress court trial, with examination of all witnesses to the event relied upon by the authority as 'cause'? Or should it be a review of the material actually before the authority, consisting principally of the reports of the parole agent and the examination of the inmate petitioner? No California case squarely decides this issue.

'(P)roceedings of the Adult Authority are wholly administrative in nature', and its determination is not a judicial act (In re Schoengarth, supra, 66 Cal.2d 295, 304, 57 Cal.Rptr. 600, 606, 425 P.2d 200, 206). The Adult Authority is not limited to the same rules of evidence applicable in a judicial proceeding (see In re Martinez, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734; In re Brown, 67 Cal.2d 339, 62 Cal.Rptr. 6, 431 P.2d 630). Even though a prisoner's term may not be refixed 'upon mere caprice or for nor reason', it cannot be said that an order made upon the parole officer's report and recommendation was without cause (In re Smith, 33 Cal.2d 797, 803, 205 P.2d 662). It is only when the authority acts 'without information, fraudulently or on mere personal caprice' in revoking parole that the remedy exists (see Eason v. Dickson, supra, 390 F.2d 585, 589, fn. 4). As was true of its predecessor, the state board of prison directors, the authority 'is not required to proceed with the formality required of the courts.' Matter of Application of Stanton, 169 Cal. 607, 609, 147 P.2d 264, 265.) 'The Adult Authority may properly, under its own procedures, determine whether defendant has engaged in conduct that constitutes cause for parole revocation' (In re Brown, supra, 67 Cal.2d 339, 342, 62 Cal.Rptr. 6, 8, 431 P.2d 630, 632). 'This kind of judgment is for the parole authorities, not for the courts' (Williams v. Dunbar, 9 Cir., 377 F.2d 505, 506, cert. den. 389 U.S. 866, 88 S.Ct. 131, 19 L.Ed.2d 137; see In re Gomez, 64 Cal.2d 591, 595, 51 Cal.Rptr. 97, 414 P.2d 33).

'A disputable presumption supports the conclusion that the minute entry or the certification of Adult Authority action correctly states the action taken by that body, including the fact that good cause existed for revocation of parole' (People v. Dorado, 62 Cal.2d 338, 360, 42 Cal.Rptr. 169, 183, 398 P.2d 361, 370). Even when revocation must be set aside because based upon a conviction which has been reversed, the proper procedure is to remand the case to the Adult Authority for further inquiry, 'under its own procedures' (In re Brown, supra, 67 Cal.2d 339, 342, 62 Cal.Rptr. 6, 431 P.2d 630).

To require or permit a full-dress court trial upon every contested revocation of parole, or upon very many of them, would 'incur a risk of danger to the public' (In re Martinez, supra, 1 Cal.3d 641, 650, 83 Cal.Rptr. 382, 388, 463 P.2d 734, 740) and could well defeat the interests of inmates generally by limiting releases upon parole (Williams v. Dunbar, supra, 377 F.2d 505, 506).

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