Shapiro, In re

• Decision Date: 14 July 1975
• Docket Number: Cr. 18241
• Court: California Supreme Court
• Parties: , 537 P.2d 888 In re Bernard A. SHAPIRO on Habeas Corpus.

Page 768

122 Cal.Rptr. 768

14 Cal.3d 711, 537 P.2d 888

In re Bernard A. SHAPIRO on Habeas Corpus.

Cr. 18241.

Supreme Court of California,

In Bank.

July 14, 1975.

Bernard A. Shapiro, in pro. per., and John T. Weld, San Francisco, under appointment by the Supreme Court, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Brian F. Taugher and Richard L. Adams, Deputy Attys. Gen., for respondent.

MOSK, Justice.

Seeking a writ of habeas corpus petitioner contends that a California detainer has been improperly placed against him at his present place of confinement, the United States Penitentiary at Steilacoom, Washington (McNeil Island). He grounds his claim on the failure of the Adult Authority to accord him parole revocation hearings as mandated by Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.

In 1969 petitioner was convicted of grand theft involving the possession of stolen credit cards and was sentenced to prison for the term prescribed by law. (Pen.Code, § 484e, subd. (4).) On April 4, 1972, petitioner was released on parole. On December 12, 1972, petitioner was arrested for selling 29 ounces of cocaine to an undercover federal narcotics officer. ¹ He was booked into Los Angeles County jail for this offense and a California parole hold was placed against him. On January 3, 1973, petitioner's parole was tentatively suspended pending the outcome of the federal charges. On March 6, 1973, petitioner pleaded guilty in federal court and was given a four-year sentence to run concurrently with his prior California sentence. He was thereafter transported to McNeil Island to begin his federal term.

On March 30, 1973, the Adult Authority formally suspended parole and ordered petitioner returned to prison for revocation proceedings. ² An arrest warrant was then forwarded to McNeil Island with a request that California authorities be notified 60 days prior to petitioner's release. The federal officials treated the filing of the warrant and the request for notice as a detainer against petitioner.

Petitioner contends the failure to accord him either a preliminary or final Morrissey hearing is a denial of due process which compels dismissal of the parole violator warrant and his restoration to California parole status. The Attorney General responds there is no right to Morrissey hearings in the case at bar on the grounds that (1) no prerevocation hearing was required because the facts in question occurred prior to our decisions in In re Valrie (1974) 12 Cal.3d 139, 115 Cal.Rptr. 340, 524 P.2d 812, and In re La Croix (1974) 12 Cal.3d 146, 115 Cal.Rptr. 344, 524 P.2d 816, and (2) no final revocation hearing was required because Morrissey does not extend to parolees convicted of crimes committed while on parole and incarcerated in another jurisdiction.

I

At the outset we comment on the source of our habeas corpus jurisdiction in the case of a federal prisoner. Obviously there is no power in this court to affect his term or conditions of confinement within a federal penitentiary. This petition does not, however, request us to direct a writ to federal officials in the State of Washington, but to officials of the Adult Authority in California. It is the existence of the detainer initiated in California which is causing the petitioner deleterious consequences at McNeil Island, and petitioner correctly concludes that if the parole violator warrant is invalid the detainer itself will be removed. ³

In terms of standing it is clear that the lodging of a detainer results in a cognizable detriment to petitioner. Petitioner enumerates the following purported adverse consequences of the detainer: (1) it precludes his application for choice work duty such as 'camp assignments' at which 'camp good time' can be earned; (2) it results in ineligibility for furloughs for work or school purposes and (3) ineligibility for federal 'parole to the community'; (4) it disrupts rehabilitative efforts since he has no way of ascertaining the ultimate length of his term if and when California executes the outstanding warrant. In addition, and perhaps most importantly, the failure of the Adult Authority to either revoke or reinstate parole has denied petitioner the benefit of concurrence which the federal sentence envisaged. As long as parole is merely 'suspended' petitioner is considered a technical fugitive from justice while at McNeil Island, and no part of the time during which he is a fugitive from justice shall be part of his term. (Pen.Code, § 3064; cf. In re Yutze (1968) 69 Cal.2d 389, 71 Cal.Rptr. 673, 445 P.2d 289; In re Pearce (1974) 40 Cal.App.3d 399, 115 Cal.Rptr. 222.) ⁴

II

The merits of petitioner's claim begin with a consideration of Morrissey. There the Supreme Court held that the Fourteenth Amendment requires the states to provide two separate hearings prior to parole revocation: first, a reasonably prompt, informal 'prerevocation' hearing near the place of the alleged violation to determine if there is probable cause to believe a parole condition has been violated (408 U.S. at pp. 484--487, 92 S.Ct. 2593); and secondly, a more formal 'revocation' hearing which includes notice to the parolee of the charges and evidence against him, the opportunity to personally appear, present evidence and confront and cross-examine witnesses, a neutral and detached tribunal, and a written statement by the factfinder of the reasons for revocation. (Id. at pp. 487--490, 92 S.Ct. 2593.)

The question whether either or both Morrissey hearings are required where the parole violation charged is the commission of a separate criminal offense is one we considered in In re Law (1973) 10 Cal.3d 21, 109 Cal.Rptr. 573, 513 P.2d 621, and In re Valrie (1974) supra, 12 Cal.3d 139, 115 Cal.Rptr. 340, 524 P.2d 812. In Law we determined that the preliminary hearing or trial itself may serve as the first Morrissey hearing as long as the criminal proceeding occurs promptly after the commission of the charged offense and the parolee-defendant is given notice of its dual purpose. (10 Cal.3d at p. 28, 109 Cal.Rptr. 573, 513 P.2d 621.) In Valrie we reiterated the holding of Law and squarely determined that the requirement of a prerevocation hearing remains even when the alleged parole violation is also charged as a new crime, either by state or federal authorities. (See also Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656.)

To date we have not had occasion to consider whether a final revocation hearing is required when the parole violation charged is conviction of a separate offense and the parolee is being held by another sovereign. To resolve petitioner's claim in the case before us we must decide that question as well as whether the failure to provide a prerevocation hearing has resulted in such prejudice as to justify removing the detainer and restoring petitioner to parole status.

III

The Attorney General concedes 'To the extent that Morrissey requires a prerevocation hearing while criminal proceedings are pending on conduct which is alleged to constitute a parole violation, petitioner should have been given a prerevocation hearing.' We interpret this somewhat tautological statement as a concession that such a hearing was required here. However, the events in question took place prior to our decisions in Valrie and La Croix, during which period the Adult Authority took the position that a prerevocation hearing was not required when an alleged parole violation was also charged as a new crime. We noted in La Croix that this attitude was based on a good faith misinterpretation of Morrissey (12 Cal.3d at p. 155, fn. 7, 115 Cal.Rptr. 344, 524 P.2d 816), and rejected the contention that in all cases of wrongful denial of a timely prerevocation hearing the parolee must be restored to parole status.

The test adopted in La Croix for determining whether denial of a hearing resulted in prejudice was the harmless error standard, i.e., 'before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' (P. 154 of 12 Cal.3d, p. 350 of 115 Cal.Rptr., p. 822 of 524 P.2d, quoting Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) In applying this test we held: 'It is manifest that in the instant case petitioner cannot establish that he was prejudiced by the denial of such a timely prerevocation hearing. He does not suggest any manner in which he can successfully challenge the fact of his post-parole conviction of driving under the influence of intoxicating liquor and the fact that such conviction constituted a violation of a condition of parole. He presents nothing which even suggests that all factual issues to be presented at the summary prerevocation hearing to which he was entitled would not necessarily have been resolved against him. . . . He thus fails completely to demonstrate prejudice . . . and we can declare without reservation that the denial in this case was harmless beyond a reasonable doubt. . . .' (Pp. 154--155 of 12 Cal.3d, p. 350 of 115 Cal.Rptr., p. 822 of 524 P.2d.)

Similarly, petitioner in the present case makes no showing that he was prejudiced by denial of a timely prerevocation hearing. The sole purpose of this hearing would have been to determine if there was probable cause to believe he had violated a condition of parole. In view of the sale of contraband to the agent, the discovery of additional contraband in the home, and the ultimate guilty plea, it is evident the result of this hearing would have been adverse to petitioner. Petitioner makes no suggestion that the disposition would have been otherwise, but contends only that denial of a hearing per se entitles him to relief. We rejected that contention in La Croix, and we likewise conclude here that the denial of a prerevocation hearing was harmless error beyond a...