Rogers, In re

• Decision Date: 24 November 1980
• Docket Number: Cr. 21429
• Citation: 28 Cal.3d 429,169 Cal.Rptr. 222,619 P.2d 415
• Court: California Supreme Court
• Parties: , 619 P.2d 415 In re Gerald McDonald ROGERS, on habeas corpus.

Page 222

169 Cal.Rptr. 222

28 Cal.3d 429, 619 P.2d 415

In re Gerald McDonald ROGERS, on habeas corpus.

Cr. 21429.

Supreme Court of California, In Bank.

Nov. 24, 1980.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi, Thomas R. Yanger and Ramon M. de la Guardia, Deputy Attys. Gen., for appellant.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Mark E. Cutler, Deputy State Public Defender, for respondent.

BIRD, Chief Justice.

This court must decide whether the Board of Prison Terms (Board) may utilize a constitutionally defective prior conviction in a serious offender hearing held pursuant to Penal Code section 1170.2, subdivision (b), ¹ to specifically add three years to a determinate sentence of a prisoner who was originally sentenced under the old Indeterminate Sentence Law.

I.

In 1971, petitioner entered guilty pleas in the Los Angeles Superior Court to two counts of Penal Code section 288. He was sentenced to state prison and paroled from there in 1975. In 1976, petitioner was convicted by a jury of seven felonies and again sentenced to state prison under the Indeterminate Sentence Law (ISL). Additionally, his parole was revoked by the Adult Authority on the 1971 convictions, and he was recommitted to prison for those offenses as well.

The determinate sentence law (DSL) became operative July 1, 1977. Thereafter, the Community Release Board ² was required by law to determine the proper determinate term for prisoners who had been previously sentenced under the ISL, and who would have been sentenced under the DSL, if their offenses had been committed on or after July 1, 1977. (§ 1170.2, subd. (a).) As petitioner was deemed a prisoner who should serve a term longer than that calculated under section 1170.2 subdivision (a), a serious offender hearing was held for him pursuant to section 1170.2, subdivision (b). ³ At the hearing, petitioner introduced a minute order from his 1976 jury trial showing that the trial court had held his 1971 convictions constitutionally invalid. The minute order did not state the reason for the court's ruling.

Despite this evidence, the Board added three extra years to petitioner's determinate term on the basis of the 1971 convictions. ⁴ The decision of the Board was apparently based on the fact that the trial court had given no reasons on the record as to why the prior convictions were unconstitutional. Petitioner appealed the Board's determination administratively without success.

Subsequently, this petition for writ of habeas corpus was filed in the Sacramento Superior Court. The petition alleged that the Board had exceeded its authority by adding three years to petitioner's term using prior convictions which had been declared constitutionally defective. The trial court issued an order to show cause and found that "the Community Release Board exceeded its authority under Penal Code section 1170.2(b) in extending petitioner's term based on two prior convictions which the sentencing court had declared constitutionally invalid ...." The Board was directed to "recompute the determinate term ..." and "delete the thirty-six month extension which was based on a prior prison term ...."

This appeal by the Board followed.

II.

The case law in California is clear that an individual may challenge the constitutional validity of a prior conviction whenever it is used as a basis for augmenting punishment. (In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce (1966) 64 Cal.2d 11, 48 [28 Cal.3d 434] Cal.Rptr. 694, 409 P.2d 918; In re Tucker (1966) 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921.) A motion to strike a prior conviction allegation from an accusatory pleading is a proper vehicle for attacking such a conviction if the presence of the prior will activate the "statutory machinery relating to penal status or severity of sanction ..." in a subsequent criminal proceeding. (People v. Coffey (1967) 67 Cal.2d 204, 214-215, 60 Cal.Rptr. 457, 430 P.2d 15). In Coffey, this court forbade the use of unconstitutionally obtained prior convictions "for any purposes in criminal proceedings." (In re Dabney (1969) 71 Cal.2d 1, 11, 76 Cal.Rptr. 636, 452 P.2d 924 (emphasis added).)

Subsequent cases have recognized that a court determination that a prior is constitutionally invalid is res judicata as to any related administrative proceedings which seek to impose additional sanctions based on the invalid prior. (Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 338, 90 Cal.Rptr. 586, 475 P.2d 858; Hasson v. Cozens (1970) 1 Cal.3d 576, 83 Cal.Rptr. 161, 463 P.2d 385; De La Vigne v. Dept. of Motor Vehicles (1969) 272 Cal.App.2d 820, 77 Cal.Rptr. 675; Mitchell v. Orr (1969) 268 Cal.App.2d 813, 74 Cal.Rptr. 407.

The Board acknowledges these precedents and concedes that under the ISL it could not have used a constitutionally invalid prior conviction to fix a prisoner's maximum term or minimum eligibility date for parole. (See In re Wilkerson (1969) 271 Cal.App.2d 798, 77 Cal.Rptr. 340.) However, the Board contends that, when it converts a "serious offender's" sentence from an indeterminate term to a determinate term, it does not increase the punishment on the basis of the invalid priors but merely considers those priors as one of several factors bearing on the prisoner's fitness for parole. (See In re Wilkerson, supra ; see also In re Streeter (1967) 66 Cal.2d 47, 56 Cal.Rptr. 824, 423 P.2d 976.)

In Streeter, this court impliedly held that the Adult Authority, the body then responsible for administering the ISL, could consider constitutionally infirm prior convictions so long as "the prior convictions simply form(ed) a part of the comprehensive body of material on the basis of which the Adult Authority's 'entire discretion' as to term-fixing and parole was to be exercised." (66 Cal.2d at pp. 50-51, 56 Cal.Rptr. 824, 423 P.2d 976.) However, the role of the Adult Authority at the time Streeter was decided was quite different than that of the Board of Prison Terms. The Adult Authority determined, within the statutory limits of the indeterminate term, the length of actual incarceration. It had complete discretion in setting a parole date, and customarily did not fix a term until parole was granted.

In Streeter, petitioner sought a judicial determination that two prior convictions were unconstitutional. He alleged that the Adult Authority had considered these prior convictions when it refused to fix his term or grant him parole. One of the convictions in issue had never been formally charged against him as a prior. His confinement derived only from his most recent convictions, and the priors did not lengthen the indeterminate sentence he was serving for those convictions. Insofar as the priors affected the statutory minimum term of actual confinement to be served, the issue was found to be moot since he had already served beyond the minimum period.

Under these circumstances, the court held that the prior convictions subjected petitioner to " 'penal sanctions' ... only in the sense that the Adult Authority, in its administration of the indeterminate sentence law, has or may have such prior convictions within its contemplation." (Id., at p. 50, 56 Cal.Rptr. 824, 423 P.2d 976.) "Realistically, the challenged priors bear at most a questionable effect on the actual matter of term-fixing or parole ...." (Id., at p. 51, 56 Cal.Rptr. 824, 423 P.2d 976, emphasis added.) As a result, the court declined to inquire into the validity of the prisoner's prior convictions.

In Wilkerson, supra, 271 Cal.App.2d 798, 77 Cal.Rptr. 340, a prisoner requested the Court of Appeal to command the Adult Authority to grant him parole, arguing that parole "would have been granted but for the existence of two allegedly invalid prior convictions" for robbery. (Id., at p. 800, 77 Cal.Rptr. 340.) The Adult Authority was not using the prior robbery convictions in determining the prisoner's eligibility for parole, but it was considering the conduct underlying those convictions as evidence relating to his fitness for parole. Relying in large part upon Streeter, supra, the court found it "unnecessary" under these circumstances to examine the constitutionality of the prior convictions. (271 Cal.App.2d at p. 802, 77 Cal.Rptr. 340.)

Neither Streeter nor Wilkerson is applicable to the present case. Under the statutory scheme of the DSL, the Board of Prison Terms is given no discretion as to the setting of parole. Once a prisoner has completed his fixed term, the Board is mandated to release him. This was not true under the ISL where the Adult Authority was given broad discretion in determining whether an individual should be released on parole. Indeed, the Adult Authority could refuse to fix a parole date. (In re Rodriguez (1975) 14 Cal.3d 639, 652, 122 Cal.Rptr. 552, 537 P.2d 384.) However, under section 1170.2, the Board must fix a term and set a specific parole date. ⁵

Unlike the "questionable" effect of the priors on the prisoner's confinement in the Streeter case, the prior convictions here were used to augment petitioner's term of confinement by three years. The effect of the consideration of the priors by the Board was direct and measurable. Finally, the Board did not merely consider the conduct underlying the prior convictions as part of petitioner's social history, even though it might have been justified in enhancing the term on that basis. (Cf. In re Brown (1967) 67 Cal.2d 339, 342, 62 Cal.Rptr. 6, 431 P.2d 630.) It specifically considered the invalid priors as evidence that petitioner was unfit for earlier release.

The Board's finding that the prior convictions represented "a pattern" of criminal behavior was similarly based on the judgment itself and not on any independent evidence of the conduct which led to the convictions. Thus, the enhancement of petitioner's term...