Stanley, In re

• Citation: 126 Cal.Rptr. 524,54 Cal.App.3d 1030
• Decision Date: 08 January 1976
• Docket Number: Cr. 8360 and C
• Court: California Court of Appeals
• Parties: Previously published at 54 Cal.App.3d 1030 54 Cal.App.3d 1030, 54 Cal.App.3d 238 In re Robert E. STANLEY, on Habeas Corpus. In re Sammy James REED, on Habeas Corpus. r. 8427

Page 524

126 Cal.Rptr. 524

Previously published at 54 Cal.App.3d 1030

54 Cal.App.3d 1030, 54 Cal.App.3d 238

In re Robert E. STANLEY, on Habeas Corpus In re Sammy James REED, on Habeas Corpus.

Cr. 8360 and Cr. 8427

Court of Appeal, Third District, California.

Jan. 8, 1976.

As Modified on Denial of Rehearing Jan. 29, 1976.

See 128 Cal.Rptr. 829.

Hearing Denied March 24, 1976.

Norman Kulla, Sacramento, for petitioners.

Evelle J. Younger, Atty. Gen. by Daniel T. Dauenhauer and Brian Taugher, Deputy Attys. Gen., Sacramento, for respondents.

FRIEDMAN, Associate Justice.

In this opinion we dispose of habeas corpus petitions of two state prison inmates who challenge the parole standards presently pursued by the California Adult Authority. These standards were announced in Directive No. 75/20, issued by the Chairman of the Adult Authority on April 15, 1975. A brief background description will aid in recognition of the issues.

The Indeterminate Sentence Law vests in the Adult Authority two distinct discretionary functions: sentence-fixing within the statutory minimum and maximum terms for the inmate's crime ¹ and parolesetting. ² In past years the Adult Authority coupled these two functions by fixing sentence only at the time it granted parole. Deferment of the inmate's parole readiness thus prolonged the indeterminacy of his sentence. In consequence, a prison inmate might wait for many years without either a parole date or ultimate discharge date. (See In re Rodriguez (1975) 14 Cal.3d 639, 122 Cal.Rptr. 552, 537 P.2d 384; In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921; In re Williams (1975) 53 Cal.App.3d 10, 12--13, 125 Cal.Rptr. 457.) Directive 75/20 was designed to inaugurate a new policy. In effect, it is a set of directions from the Chairman of the Adult Authority to the case-hearing representatives who recommend and the panels of Authority members who establish parole and discharge dates. (See Pen.Code, § 5076.1.) As issued in April 1975, the directive included standards for the establishment of discharge (i.e., sentence-fixing) dates as well as prole dates. On June 30, 1975, the California Supreme Court filed its decision in In re Rodriguez, supra, holding that the Authority must fix sentences within each statutory range proportionately to the culpability of the individual offender and calling attention to the distinct character of the Authority's sentence-fixing and parole-granting functions. (14 Cal.3d at pp. 652--653, 122 Cal.Rptr. 552, 537 P.2d 384; see also, People v. Wingo (1975) 14 Cal.3d 169, 183, 121 Cal.Rptr. 97, 534 P.2d 1001.) As a consequence, the Authority's chairman issued a second directive (No. 75/30, dated September 2, 1975), establishing separate standards for term-fixing and limiting the April directive, No. 75/20, to the single subject of parole. We summarize the basic features of the latter:

The directive declares that every effort will be made to establish parole dates the first time the inmate appears for regularly scheduled parole consideration. For each parole applicant, it establishes a Base offense (i.e., the most serious offense for which he is currently committed). It then directs selection of either a Typical or an Aggravated range for the base offense. Attached to the directive is a table of felonies with typical and aggravated ranges. ³ Exacerbating activities accompanying the crime will cause selection of an aggravated rather than typical range.

Within the appropriate base range, the panel is then to fix a Base period of confinement. The primary factor in fixing the base period is the seriousness of the commitment offense; other factors such as the inmate's age, pattern of criminality and 'serious or major disciplinary offenses' ⁴ may be considered. A period of confinement may be fixed below or above the base range when unusual features exist, but the reason must be noted in writing. Once the base period is selected, it may then be adjusted upward or downward. A downward adjustment of 6 to 18 months may be made for a youthful offender sentenced under Penal Code section 1202b. The base period may be increased for post-commitment offenses. Other augmenting factors are prior felony convictions and prior, concurrent and consecutive prison sentences. Each increase is expressed in a range of months for each augmenting factor. Thus, for a court-imposed term which is concurrent with the base offense, the base confinement will normally be increased by 3 to 12 months; for a consecutive term, 12 to 24 months; for a prior completed prison term, either 3 to 9 months or 9 to 24 months as indicated by the seriousness of the earlier offense. ⁵

Petitioner Stanley was committed to prison in April 1972 for two separate offenses: (1) sale of drugs, an offense punishable by a term of five years to life, parole being prohibited for the first three years; (2) possession of drugs for sale, punishable by 2 to 10 years' imprisonment, with parole ineligibility during the first two years. The sentencing court decreed that the terms were to be served concurrently. (Pen.Code, § 669.) In April 1975, after Stanley had served three years, the Adult Authority fixed his period of confinement as follows: 40 months (within the 38 to 48-month base range for sale of drugs), increased by 10 months (within the base range of 3 to 12 months) for his separate concurrent sentence. The 50-month confinement resulted in a grant of parole effective in June 1976, four years and two months after his entry into prison.

Petitioner Reed was received in prison December 1974, with concurrent sentences for narcotics possession (2 to 10 years, with parole ineligibility during the first two years) and for possession of a gun by an ex-felon (up to 15 years). His record included a prior Dyer Act conviction. He was entitled to credit for confinement prior to judgment. In July 1975 the Adult Authority entered a parole order, specifying confinement of 26 months (selected from the base range of 26 to 36 months) for narcotics possession, plus nine months for the firearm offense and three months for the Dyer Act conviction, decreased by approximately nine months for the pre-judgment confinement. The adjusted period of prison confinement was thus fixed at 29 months, resulting in a parole date of May 1977.

The two petitioners, In propria personam, raised a relatively narrow objection. They argued that the Adult Authority, acting under Directive 75/20, has postponed their parole dates by utilizing the concurrent sentences as an augmenting factor, thereby destroying the concurrency decreed by the sentencing court; that the Adult Authority's action transcended constitutional limits, being a partial nullification of a judicial act. We appointed counsel for the two petitioners and briefs were filed. It is now evident--and we have so informed counsel--that the issue transcends that originally presented. The issue is whether Directive 75/20, as a unitary administrative regulation, complies with the central objectives of the Indeterminate Sentence Law. We hold that it does not.

I

A cardinal principle holds that administrative regulations must conform to the enabling law; that an administrative agency has no discretion to exceed the authority conferred upon it by statute. (California Welfare Rights Organization v. Brian (1974) 11 Cal.3d 237, 242, 113 Cal.Rptr. 154, 520 P.2d 970.) The question before the reviewing court is not the wisdom of the agency's rule or policy, but whether it would alter or amend the statute. (Morris v. Williams (1967) 67 Cal.2d 733, 738, 63 Cal.Rptr. 689, 433 P.2d 697.) An agency may not adopt a rule which diminishes its own statutory authority. (California Drive-In Association v. Clark (1943) 22 Cal.2d 287, 302, 140 P.2d 657.)

California's current Indeterminate Sentence Law is the descendant of parole legislation first adopted in 1913 and an indeterminate sentence statute enacted 2n 1917. (See Roberts v. Duffy (1914) 167 Cal. 629, 140 P. 260; In re Lee (1918) 177 Cal. 690, 171 P. 958.) Although it omits express enumeration of parole criteria, these criteria have emerged from six decades of judicial interpretation.

The 1913 parole law authorized the then board of prison directors to grant parole to 'first termers' after one year of imprisonment. The board attempted to circumscribe its own discretion by a rule refusing parole consideration until the first termer had served half his term. In Roberts v. Duffy, supra, the California Supreme Court nullified the rule, declaring: 'The legislative policy manifested in the act was to provide . . . a system . . . whereby, notwithstanding fixed terms of sentence, a hope was to be held out to prisoners that through good conduct in prison and a disposition shown toward reformation, they might be permitted a conditional liberty upon restraint under which they might be again restored to society . . .. Service of an arbitrary fixed term which has relation to the matter of punishment cannot of itself furnish a proper or just standard of itself by which it may be fairly determined whether or not a prisoner has repented his crime and evidenced a disposition to redeem himself and may with safety to society be granted a parole under which to attain complete reformation. . . . (T)he purpose of the legislature in creating a parole system . . . is to permit the liberation of a prisoner on parole at the earliest period when permitted by law and when on a consideration of the merits and objects of each inividual case, parole ought in the judgment of the board, to be granted.' (167 Cal. at pp. 634, 636, 637, 140 P. at p. 262.)

Thus, early in the history of the parole system, the California Supreme Court emphasized the significance of acceptable conduct in prison and the individual's potential for reclamation. Later, the court noted additional factors--the nature of the prisoner's offense, his age, his prior associates, his habits, inclinations and traits of...