Tucker, In re

• Decision Date: 24 June 1971
• Docket Number: Cr. 13489
• Citation: 486 P.2d 657,5 Cal.3d 171,95 Cal.Rptr. 761
• Court: California Supreme Court
• Parties: , 486 P.2d 657 In re Preston R. TUCKER on Habeas Corpus.

Page 761

95 Cal.Rptr. 761

5 Cal.3d 171, 486 P.2d 657

In re Preston R. TUCKER on Habeas Corpus.

Cr. 13489.

Supreme Court of California,

In Bank.

June 24, 1971.

Preston R. Tucker, in pro. per., and Dorsey Redland, San Francisco, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws, Nelson P. Kempsky and David Cunningham, Deputy Attys. Gen., for respondent.

BURKE, Justice.

Petitioner challenges the revocation of his parole by the Adult Authority. ¹ He was paroled from Folsom Prison in January 1968, having served a portion of sentences imposed in 1949 for the commission of three first degree robberies and an assault with intent to commit murder. On December 6, 1968, his parole was canceled and his term of sentence reset at the maximum, life imprisonment. At a parole revocation hearing on February 20, 1969, petitioner was advised of the conditions of his parole which his parole officers reported that he had violated, namely, having left the county of his residence without prior approval, and having possessed a firearm. Petitioner admitted the first violation but refused to admit or deny the second. The Adult Authority concluded that he had violated both conditions and revoked his parole on those grounds.

In his petition for habeas corpus, petitioner alleged that the sole evidence before the Adult Authority of his possessing a firearm was his own uncorroborated confession exacted by police officers through duress, threats and promises, and without the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Since the People disputed petitioner's claim that his statement was involuntary, we appointed a referee to receive evidence on that and other factual questions raised by the pleadings. (See In re Gomez, 64 Cal.2d 591, 51 Cal.Rptr. 97, 414 P.2d 33.)

After a hearing, the referee found that the Adult Authority had relied exclusively upon petitioner's statement that he had possessed a firearm while on parole. However, the referee also found that the statement was free and voluntary. Although a referee's findings are not binding upon this court, they are entitled to great weight if supported by substantial evidence. (In re Branch, 70 Cal.2d 200, 203, fn. 1, 74 Cal.Rptr. 238, 449 P.2d 174.) In the instant case, both police officers testified that petitioner's statement was made without duress, threats or promises of any kind. ² Accordingly, we adopt the finding of the referee that the statement was freely and voluntarily given by petitioner.

The referee also found that the officers had failed to give petitioner any of the warnings required under Miranda, supra, since they did not consider petitioner to be a suspect in the case. We need not reach the question whether or not petitioner was entitled to these warnings, for it is now settled that the Adult Authority properly may consider and act upon a voluntary confession or statement obtained from a parolee without first apprising him of his constitutional rights. (In re Martinez, 1 Cal.3d 641, 650, 83 Cal.Rptr. 382, 463 P.2d 734.)

We have concluded that the Adult Authority properly considered petitioner's statement in deciding whether to revoke his parole, and that the statement constituted sufficient cause (Pen.Code, § 3063) to justify parole revocation.

Petitioner further contends that he was denied due process of law in that the Adult Authority on February 20, 1969, 'forced petitioner to appear before them without informing petitioner of his rights and without benefit of counsel. * * *' Petitioner misconceives the nature and purpose parole revocation hearings before the of parole revocation hearings before the Adult Authority.

It is true that the parole revocation procedure adopted by the Adult Authority bears certain features common to an ordinary criminal trial or other adversary proceeding. ³ Through these procedures, parolees are informed of the nature of the parole violations and are given an opportunity to deny, admit or explain them. Since the existence of good cause to revoke a parole may be challenged on habeas corpus, such procedures 'not only discourage needless judicial review but will impart a sense of fairness in the state's dealings with its parolees.' (In re Gomez, Supra, 64 Cal.2d 591, 594, fn. 1, 51 Cal.Rptr. 97, 99, 414 P.2d 33, 35.)

However, the use of certain procedures and nomenclature common to a criminal trial does not alter the fundamental character of parole revocation hearings. As the Authority itself acknowledges, these procedures are 'not required by law' (Policy Statement, Supra, p. 1), and revocation rests entirely in the discretion of the Adult Authority in carrying out its responsibility over parole matters. Under Penal Code section 3060, the Authority is given 'full power to suspend, cancel or revoke any parole without notice, and to order returned to prison any prisoner upon parole.' The sole statutory restriction upon the power to revoke parole is section 3063, which provides that 'no parole shall be suspended or revoked without cause, which cause must be stated in the order suspending or revoking the parole.'

This court has held that the Adult Authority may revoke parole without notice Or hearing (In re Gomez, Supra, 64 Cal.2d 591, 594, 51 Cal.Rptr. 97, 414 P.2d 33; In re McLain, 55 Cal.2d 78, 84, 9 Cal.Rptr. 824, 357 P.2d 1080), ⁴ and the provisions of the California Administrative Procedure Act (Gov.Code, § 11370 et seq.) are inapplicable to Adult Authority parole proceedings (see Gov.Code, §§ 11500, subd. (a), 11501; cf. Hyser v. Reed (1963) 115 U.S.App.D.C. 254, 318 F.2d 225, 236--237, cert. den. Thompson v. United States Board of Parole, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315). Moreover, in In re Schoengarth, 66 Cal.2d 295, 304, 57 Cal.Rptr. 600, 606, 425 P.2d 200, 206, we rejected the suggestion that parole hearings were in the nature of judicial proceedings requiring the presence of counsel, stating 'The proceedings of the Adult Authority are wholly administrative in nature, and that agency's determination of the length of sentence or conditions of parole is not a sentence or conditions of re Sandel, 64 Cal.2d 412, 415, 50 Cal.Rptr. 462, 412 P.2d 806.)

Therefore, notwithstanding the Adult Authority's internal characterization of parole revocation proceedings as involving an 'adjudication' process, revocation of parole cannot be considered a judicial act. This fact seemingly would distinguish these proceedings from the deferred sentencing procedures involved in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, relied upon by petitioner. In Mempa, defendant was brought before the trial court for a hearing on the revocation of his probation and the imposition of his sentence, which had been deferred during the probationary period. As these proceedings constituted merely a continuation of the original judicial proceedings instituted against defendant, the United States Supreme Court held that defendant had a right to be represented in court by counsel, stating that right to counsel extends to 'every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.' (389 U.S. at p. 134, 88 S.Ct. at p. 257.) The court stressed that counsel's assistance would be required to influence 'judicial discretion' (the trial court was authorized to make recommendations to the Board of Prison Terms and Paroles regarding defendant's actual prison term) and to protect defendant's 'legal rights' (such as right to appeal). (389 U.S. at p. 135, 88 S.Ct. 254.) However, it is significant that the court did not suggest that counsel would be required during the subsequent administrative stage when the board itself determines the actual term which defendant must serve.

The California courts recognized prior to Mempa that counsel's presence was required at all judicial proceedings involving the imposition of sentence. (In re Perez, 65 Cal.2d 224, 229--230, 53 Cal.Rptr. 414, 418 P.2d 6; In re Klein, 197 Cal.App.2d 58, 17 Cal.Rptr. 71.) However, we have acknowledged that the Mempa case 'is inapplicable to cases of termination of conditional release which involve no such sentencing (citations)' such as parole revocation proceedings. (In re Marks, 71 Cal.2d 31, 47, fn. 11, 77 Cal.Rptr. 1, 12, 453 P.2d 441, 452; see People v. St. Martin, 1 Cal.3d 524, 538, 83 Cal.Rptr. 166, 463 P.2d 390.) ⁵

Unlike the situation in Mempa, parole revocation proceedings occur in an entirely nonjudicial setting, wherein both judgment of conviction and sentence have been imposed by the court, no further judicial proceedings take place, and the revocation hearing itself is one gratuitously but nevertheless quite properly offered and conducted by the Adult Authority pursuant to its own internal rules of procedure and its desire to accord the prisoner an opportunity to be heard. Nor does revocation of parole involve any 'substantial' or 'legal' rights of the prisoner, for prisoners on parole remain under legal custody and are subject to be returned to prison at any time. (Pen.Code, § 3056; People v. Villareal, 262 Cal.App.2d 438, 447, 68 Cal.Rptr. 610; People v. Hernandez, 229 Cal.App.2d 143, 149, 40 Cal.Rptr. 100.) Parole is considered to be a matter of grace, a privilege and not a right, and is committed entirely to the discretion of the Adult Authority. (In re Schoengarth, Supra, 66 Cal.2d 295, 300, 57 Cal.Rptr. 600, 425 P.2d 200; People v. Ray, 181 Cal.App.2d 64, 69, 5 Cal.Rptr. 113, cert. den. 366 U.S. 937, 81 S.Ct. 1662, 6 L.Ed.2d 848.)

Thus, a majority of the courts which have considered the question have held that the Mempa case does not require the presence of counsel at parole revocation proceedings. (See Pope v. Superior Court, 9 Cal.App.3d 644, 647, 88 Cal.Rptr. 488; Johnson v. Stucker (1969) 203 Kan. 253, 453 P.2d 35, 39--40, cert. den. 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180; ...