Prewitt, In re

• Decision Date: 14 December 1972
• Docket Number: Cr. 16128
• Court: California Supreme Court
• Parties: , 503 P.2d 1326 In re Robin Lin PREWITT on Habeas Corpus. In Bank

Page 318

105 Cal.Rptr. 318

8 Cal.3d 470, 503 P.2d 1326

In re Robin Lin PREWITT on Habeas Corpus.

Cr. 16128.

Supreme Court of California,

In Bank.

Dec. 14, 1972.

Rehearing Denied Jan. 24, 1973.

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

Evelle J. Younger, Atty. Gen., Herbert L. Ashby and Edward A. Hinz, Jr., Chief Asst. Attys. Gen., Doris H. Maier, Asst. Atty. Gen., Arnold O. Overoye, Nelson P. Kempsky, Jack R. Winkler and William R. Pounders, Deputy Attys. Gen., for respondent.

WRIGHT, Chief Justice.

We issued an order to show cause in response to an application by Robin Lin Prewitt for a writ of habeas corpus wherein he complains that an Adult Authority (Authority) order improperly rescinded a prior grant of parole, fixed his term at maximum and provided that the Authority would not consider future applications for fixing his term at less than maximum or for granting parole. Since filing his petition he has further complained of a denial of procedural due process protections claimed to have been afforded pursuant to Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, filed by the Supreme Court after the filing of the petition herein.

In the case of In re Minnis (1972) 7 Cal.3d 639, 102 Cal.Rptr. 749, 498 P.2d 997, we held that periodic reconsideration of Authority orders which deny parole or refuse to fix a term at less than maximum is essential to achieve the purposes of the Indeterminate Sentence Law and the parole system (see Pen.Code, §§ 1168, 1168a, 3020), and that failure to afford such review constitutes an abuse of discretion. ¹ (Id., at pp. 645--647, 102 Cal.Rptr. 749, 498 P.2d 997.) For reasons which hereinafter appear, petitioner is entitled only to that relief afforded by Minnis.

In 1969 petitioner pleaded guilty to violations of section 12220 (possession of a machine gun) and Health and Safety Code section 11910 (possession of a restricted dangerous drug). On May 9, 1969, he was sentenced to serve a term of six months to five years on the charge involving the possession of the machine gun for which he is currently incarcerated at Folsom Prison. ² He has one prior felony conviction.

On December 9, 1970, the Authority fixed petitioner's term at the maximum of five years, '(g)ranted parole effective May 17, 1971,' and transferred him to a forestry camp pending release on parole. However, at a meeting of its executive committee which was held on April 20, 1971, the Authority rescinded its 'action of 12--0--70 fixing term and granting parole.' It again fixed petitioner's term at the maximum of five years, denied parole and declared that petitioner would receive '(n)o further parole consideration.' ³ The People concede that the Authority's action was predicated upon information contained in confidential statements submitted by law enforcement agencies which had investigated petitioner's case. ⁴

Section 3022 provides that 'At least 30 days before the Adult Authority shall meet to fix and determine the length of time any prisoner shall be confined, the authority shall send written notice thereof to each of the following persons who has made request therefor: the judge of the superior court before whom the prisoner was tried and convicted, the attorney for the defendant and the district attorney of the county from which the prisoner was sentenced and the law enforcement agency that investigated the case.' Section 3042 makes a similar provision for notice to the foregoing parties and the Director of Corrections prior to the Authority's consideration of a prisoner's parole. The apparent purpose of notifying the designated parties is to invite them to submit their views as to the appropriate length of term and the advisibility of parole.

Petitioner contends that he is entitled to confront and cross-examine the author of any submitted statement and the persons whose views are referred to or relied upon in that statement. He argues that by rescinding his parole date and redetermining his term without allowing him 'to confront and cross-examine the witnesses against him' the Authority violated his right to procedural due process.

We deal first with the question whether an inmate prior to a rescission of parole is entitled to due process protections and, if so, what specific procedural processes are due. We deem that this inquiry, in significant aspects, has heretofore been resolved in favor of petitioner's claims. (See Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.) Morrissey holds that proceedings for parole revocation must conform to minimum due process requirements, including, inter alia, the protections sought by petitioner in the instant case. ⁵ (See People v. Vickers, Cal. 105 Cal.Rptr. 305, 503 P.2d 1313.) Although the proceedings of which petitioner complains were not for revocation of parole but for rescission of an unexecuted grant of parole, we can perceive no significant distinction between the deprivation of the right to conditional liberty enjoyed by a parolee after release and the deprivation of the right to achieve such liberty after a grant thereof but before the date fixed for release. In either event the parolee has been deprived of a valuable if limited right to be free (see Morrissey v. Brewer, supra, 408 U.S. at p. 482, 92 S.Ct. 2593; People v. Vickers, supra, p. 305 of 105 Cal.Rptr., p. 1313 of 503 P.2d), and the same or substantially the same protection must be accorded him in effecting that deprivation. An inmate, accordingly, is entitled to a hearing which substantially conforms to the Morrissey procedures on the question whether an order granting parole should be rescinded as improvidently granted. ⁶

Petitioner in the instant case has expressed particular concern because the information on which the Authority relied in rescinding its earlier order was submitted in the form of statements made following notice given pursuant to sections 3022 and 3042 without affording him an opportunity to respond thereto. The Morrissey procedures specifically provide for the protection petitioner demands (see fn. 5, supra) in a proceeding wherein Morrissey is applicable. However, the protection is expressly limited. In describing the nature of a parolee's right to a disclosure of adverse information at the preliminary hearing, the Supreme Court stated that 'if the hearing officer determines that the informant would be subject to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination.' (408 U.S. at p. 487, 92 S.Ct. at p. 2603.) Such limitation on the right of disclosure is also applicable at the more formal hearing as to information submitted either by witnesses or by written statements in accordance with sections 3022 and 3042. (Id., at pp. 487, 489, 92 S.Ct. 2593.) As the right of nondisclosure is necessary to protect only the informer, it is only his identity and not that of the reporting official or agency which may be withheld.

Although for purposes of applying Morrissey we do not distinguish between a revocation and a rescission of a grant of parole, it is not our intent and we do not hold that the Morrissey procedures are applicable to proceedings by the Authority for fixing the terms of and granting paroles to prison inmates. We are nevertheless constrained to remark, although the issue is not now before us, that certain proceedings in connection with the fixing of terms and granting of paroles may not now conform to due process requirements. When determining whether a procedure involved in the term-fixing or parole-granting process violates due process, 'the reviewing court must consider the objectives sought to be achieved by the challenged procedure, the possible unfairness to the prisoner, and the availability of alternate procedures which are less burdensome to the prisoner.' (In re Minnis, supra, 7 Cal.3d 639, 649, 102 Cal.Rptr. 749, 756, 498 P.2d 997, 1004.) While the Authority's right to receive relevant information from the notified parties, including the investigating agencies, is beyond question (Id., at p. 650, 102 Cal.Rptr. 749, 498 P.2d 997; cf. Williams v. New York (1949) 337 U.S. 241, 245--247, 69 S.Ct. 1079, 93 L.Ed. 1337), doubt remains as to that body's right to keep such information secret from the prisoner who may suffer unjustifiably if inaccurate statements are relied upon by the Authority in making its determination.

The People have urged that disclosure of these statements will endanger the sources of information and that, consequently, potential informants will be discouraged from confiding in the Authority so as to deprive it of information essential to the performance of its functions. Except where, as noted in Morrissey, a disclosure will impose a risk of harm to some informant, the People's argument overstates the importance of confidentiality to the achievement of the governmental objectives involved. The Legislature has otherwise provided for the submission immediately after pronouncement of judgment of similar statements from most of the same parties or agencies who receive notice pursuant to sections 3022 and 3042. (See § 1203.01; In re Minnis, supra, 7 Cal.3d 639, 650, 102 Cal.Rptr. 749, 498 P.2d 997.) Copies of such statements at that time Must be disclosed to the prisoner and his attorney, and there is nothing in the record which suggests that such disclosure requirements have seriously impeded the flow of information to the Authority.

From the inmate's point of view a policy of nondisclosure increases the potential for unfairness. Unless the prisoner learns what information is in the Authority's possession he cannot intelligently decide what subjects to discuss at his predisposition interview. (See § 5077.) Especially with respect to statements containing information which may be inaccurate and was not presented at trial--either because the information was not sufficiently...