Schoengarth, In re

• Decision Date: 28 March 1967
• Docket Number: Cr. 10331
• Citation: 57 Cal.Rptr. 600,66 Cal.2d 295,425 P.2d 200
• Parties: , 425 P.2d 200 In re Robert L. SCHOENGARTH on Habeas Corpus. In Bank
• Court: California Supreme Court

Page 600

57 Cal.Rptr. 600

66 Cal.2d 295, 425 P.2d 200

In re Robert L. SCHOENGARTH on Habeas Corpus.

Cr. 10331.

Supreme Court of California,

In Bank.

March 28, 1967.

Robert L. Schoengarth, in pro. per., and Ralph D. Drayton, Sacramento, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and Robert S. Shuken, Deputy Atty. Gen., for respondent.

MOSK, Justice.

By this application for habeas corpus petitioner challenges the power of the Adult Authority to condition its offer of parole on his agreeing to be released to the custody of Colorado representatives for trial on charges pending against him in that state, and the authority's power to redetermine his sentence upon his refusal to sign such an agreement. As will appear, both actions are within the jurisdiction of the authority. Secondly, petitioner complains that prison officials have refused to allow him to keep legal research notes in his cell, in violation of his right of reasonable access to the courts; this contention, too, is without merit.

On August 16, 1963, petitioner pleaded guilty to a charge of second degree burglary and was sentenced to state prison for the term prescribed by law. In such cases the statute provides for imprisonment for not less than one nor more than 15 years. (Pen.Code, § 461, subd. 2.) Unless validly fixed by the Adult Authority at less than maximum, petitioner's term therefore will expire in 1978. He did not appeal.

Two Colorado warrants of arrest were filed with the prison authorities, charging petitioner with the crimes of forgery and confidence game committed in that state. Petitioner alleges he asked a records officer at the prison if he could file a demand for trial on the Colorado charges. The officer replied there was no possibility of doing so, inasmuch as Colorado was not a signatory to the Agreement on Detainers (Pen.Code, §§ 1389--1389.7) and no other arrangements existed whereby petitioner could demand to be released to the custody of that state for trial. This information appears to have been correct.

On June 9, 1964, the Adult Authority declined to fix petitioner's term and parole date, and postponed the matter to its next annual calendar. On June 2, 1965, the authority fixed petitioner's term at seven years; in the same action it granted petitioner parole effective August 2, 1965, on the special condition that he 'go to hold,' i.e., that he be released to the custody of Colorado for trial on the outstanding charges against him.

Despite his previously expressed desire to be returned to Colorado for this purpose, petitioner refused to sign either the parole agreement or a waiver of extradition. He stated he wished to contest the proceedings, and requested the advice of an attorney. On August 4, 1965, petitioner's motion for appointment of counsel was denied by the Monterey Superior Court, 'It appearing to the Court that no cause of action has been stated * * *.'

On September 7, 1965, the Adult Authority rescinded its action of June 2 'fixing term and granting parole,' and placed the matter on its next annual calendar. The rescission, of course, automatically reset petitioner's term at maximum pending further action by the authority. (Cf. People v. Dorado (1965) 62 Cal.2d 338, 358--359, 42 Cal.Rptr. 169, 398 P.2d 361.

In November 1965 a third Colorado warrant of arrest was filed against petitioner; the charge on this occasion was possession of narcotic drugs.

Petitioner alleges that on June 1, 1966, he appeared before the Adult Authority, renewed his request for counsel, and 'asked the parole board to allow me to have a discharge, and to let me go back to Colorado, to stand trial for what offenses that I had committed there.' On the same date the authority accordingly refixed his term at eight years and granted him parole effective August 2, 1966, subject to the prior condition that he 'go to hold.' But petitioner again refused to sign the parole agreement, and 'Stated that on advice of counsel, Jones, Jones, Murphy & Sturgis, Attorneys at Law, 232 Madison Street, Monterey, California, he was refusing to sign since Parole Agreement stipulated that he would be released to the custody of Denver Colorado Sheriff.'

On July 6, 1966, the Adult Authority reviewed the case; it rescinded its 'term fixing action' of June 1, 1966, and placed the matter on its June 1967 calendar. Petitioner's term is therefore reset at maximum until further disposition at that time.

From the foregoing facts it appears that petitioner has taken totally inconsistent positions as to what he desires the Adult Authority to do in his case: on at least two occasions, according to his own allegations, he specifically asked if he could go to Colorado to stand trial on the pending charges; yet each time the Adult Authority offered him a parole that would allow him to legally do so, hr refused to sign the necessary parole agreement, demanded the appointment of counsel and announced he was 'fighting extradition.' In any event, petitioner has not shown grounds for relief under the applicable statutes.

In this state the parole power is vested in the Adult Authority. (Pen.Code, §§ 5077, 3040.) While a prisoner eligible for parole has the right to apply therefor and to have his application duly considered, he has no right to a parole at any fixed time, or at all; the decision to grant or deny parole is committed entirely to the judgment and discretion of the Adult Authority. (Roberts v. Duffy (1914) 167 Cal. 629, 640--641, 140 P. 260; People v. Ray (1960) 181 Cal.App.2d 64, 69, 5 Cal.Rptr. 113.) 'In determining whether the privilege of parole shall be granted a prisoner, that Authority is not guided solely by the good conduct of the prisoner while incarcerated. The nature of his offense, his age, his prior associations, his habits, inclinations and traits of character, the probability of his reformation and the interests of public security are all taken into consideration.' (People v. Denne (1956) 141 Cal.App.2d 499, 507, 297 P.2d 451, and cases cited.)

The statute further empowers the Adult Authority to impose on any grant of parole 'such conditions as it may deem proper' (Pen.Code, § 3053). The conditions customarily invoked, for example, govern the parolee's residence, employment and civil rights, restrict his use of alcoholic beverages and motor vehicles, and forbid his possession of narcotics and weapons. But the circumstances of the case may dictate still further conditions. Thus if another sovereign asserts a claim to try a prospective California parolee for a crime committed against its own laws, the grant of parole is often conditioned on agreement by the prisoner to be released directly to the custody of that sovereign. (See, e.g., In re Malone (1955) 44 Cal.2d 700, 705, 284 P.2d 805 (Parolee to answer charge pending in another state); In re Kimler (1951) 37 Cal.2d 568, 570, 233 P.2d 902 (parolee to complete a term of imprisonment begun in another state); In re Marzec (1945) 25 Cal.2d 794, 795--796, 154 P.2d 873 (parolee to return to a prison in another state from which he had escaped); In re Silverstein (1942) 52 Cal.App.2d 725, 726, 126 P.2d 962 (parolee released to federal authorities for prosecution on charge of violating laws of the United States); cf. In re Korner (1942) 50 Cal.App.2d 407, 409, 123 P.2d 111 (parole on condition defendant be released to custody of immigration authorities for deportation).)

Such cooperation between two jurisdictions serves both the principles of comity and the interest of society in a safe and orderly transfer of custody of the prisoner. The latter, too, benefits from a prompt disposition of the charges against him, as it preserves his constitutional right to a speedy trial. Moreover, if he is convicted his California parole is not violated, but runs concurrently with any sentence he may be compelled to serve in the second jurisdiction (Pen.Code, § 669; see In re Patterson (1966) 64 Cal.2d 357, 361--362, 49 Cal.Rptr. 801, 411 P.2d 897); if he is acquitted, he reports to the appropriate California authorities and continues on his parole subject to the remaining conditions. Indeed, without such an agreement or other permission of the Adult Authority a parolee who voluntarily goes to a sister state to stand trial 'shall be held as an escaped prisoner and arrested as such.' (Pen.Code, § 3059.)

It follows that the special condition on the parole offered to petitioner, i.e., that he 'go to hold' on the pending Colorado charges, was a legitimate and proper exercise of the Adult Authority's broad discretion under section 3053. Doubtless, petitioner was not Required to accept parole on this or any other condition (In re Peterson (1939) 14 Cal.2d 82, 92 P.2d 890), but 'this conclusion does not entitle petitioner to an absolute discharge from custody at this time, for he cannot convert the board's order into an unconditional parole merely by rejecting the condition attached' (id. at p. 85, 92 P.2d at p. 891). In Peterson we adopted the general rule that 'a proffered parole must * * * be accepted to be effective.' (Ibid.) Thus by refusing to sign the parole agreement because of a valid condition which he chose not to accept, petitioner Ipso facto rendered the grant of parole inoperative. It was then proper administrative procedure for the Adult Authority to revoke its parole offer and put the matter over to a subsequent calendar.

At the same time, the Adult Authority also rescinded its term-fixing action; petitioner's sentence was thereby returned to maximum until the next annual offer of parole, at which time it was refixed with an increment of one year over the previous term. As will appear, that action too was proper.

The Adult Authority, by statute, has exclusive jurisdiction to fix the length of time a prisoner must serve within the limits of an indeterminate sentence. (Pen.Code, §§ 5077, 3020.) One who is...