Way v. Superior Court

• Decision Date: 19 October 1977
• Citation: 74 Cal.App.3d 165,141 Cal.Rptr. 383
• Court: California Court of Appeals Court of Appeals
• Parties: Howard WAY, Chairman of the Adult Authority, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SAN DIEGO, Respondent; Raymond L. HOOBLER, Real Party in Interest. Howard WAY, Chairman of the Adult Authority, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SACRAMENTO, Respondent; Ross G. THARP, Judge of the Superior Court of San Diego County, et al., Real Parties in Interest. Civ. 16970.

Page 383

141 Cal.Rptr. 383

74 Cal.App.3d 165

Howard WAY, Chairman of the Adult Authority, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SAN DIEGO, Respondent;

Raymond L. HOOBLER, Real Party in Interest.

Howard WAY, Chairman of the Adult Authority, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SACRAMENTO, Respondent;

Ross G. THARP, Judge of the Superior Court of San Diego County, et al., Real Parties in Interest.

Civ. 16970.

Court of Appeal, Third District, California.

Oct. 19, 1977.

As Modified Nov. 10, 1977.

Hearing Denied Dec. 22, 1977.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Daniel J. Kremer, Asst. Attys. Gen., Roger E. Venturi, Ramon de la Guardia, Karl J. Phaler, and Michael D. Wellington, Deputy Attys. Gen., for petitioner.

Paul Halvonik, State Public Defender, Gary Goodpaster, Chief Asst. State Public Defender, as amicus curiae on behalf of petitioner.

William A. Smith, Dist. Atty., Fresno, Jerome Behrens, Deputy Dist. Atty., Kendall M. Squires, Rose, Rockwell & Jennings, D. Frederick Jay, Coronado, Donald L. Clark, County Counsel, William D. Smith, Deputy County Counsel, San Diego, for real parties in interest.

PARAS, Associate Justice.

Effective July 1, 1977, California repealed its sixty-year old Indeterminate Sentence Law (ISL). On that date, the Uniform Determinate Sentencing Act of 1976 ¹ (the Act) became operative, having been signed by the Governor on September 21, 1976. ²

In contrast to the ISL, which was designed "to mitigate the punishment . . . place emphasis upon the reformation of the offender," and "make the punishment fit the criminal rather than the crime" (In re Lee (1918) 177 Cal. 690, 692, 171 P. 958, 959) the Act declares that "the purpose of imprisonment for crime is punishment. This purpose is best served by . . . provision for uniformity in the sentences of offenders . . .." (Pen Code, § 1170, subd. (a) (1).) (Emphasis added.)

To achieve total uniformity, Penal Code section 1170.2 provides for retroactive application of the Act to prisoners incarcerated under the ISL. This has resulted in raised expectations for early release among certain current prisoners, and in fears among certain members of the public that prison "floodgates" would be opened. The latter fear has generated the two cases consolidated here, one from Sacramento County and one from San Diego County.

The Sacramento case was transferred from Fresno County where it was filed originally on May 12, 1977. Plaintiffs are San Diego County Superior Court Judges Ross G. Tharp and Jack R. Levitt, and District Attorneys William A. Smith of Fresno County and Gene L. Tunney of Sonoma County. They sought a preliminary injunction against effectuation of the retroactivity portion of the Act on the ground that it is a legislative infringement upon the Governor's power to commute sentences (Cal. Const., art. V, § 8) in violation of the separation of powers clause of the California Constitution (art. III, § 3). The trial court (Irving H. Perluss, J.), found that as taxpayers they had standing to bring the action and on June 20, 1977, granted a preliminary injunction effective at 11:30 p. m. on June 30, 1977.

In the meantime, on May 20, 1977, a similar suit was filed in San Diego County Superior Court by Jan Gleason on behalf of all women who are potential victims of crime, and by Raymond L. Hoobler as a taxpayer. The trial court (Wesley B. Buttermore, J.), ruled that Hoobler had standing to sue as a taxpayer and granted a preliminary injunction on June 16, 1977. The court stayed its injunction, however, "until a final determination by the Supreme Court of California." ³

The defendants in the two actions (the Adult Authority, the Women's Board of Terms and Parole, the Department of Corrections, the Health and Welfare Agency, and their respective heads), filed petitions with the Supreme Court on June 22, 1977, to stay and vacate the injunctions. On June 29, the Supreme Court stayed the injunctions and transferred the cases to this Court with directions to issue alternative writs of mandamus. On July 6, we consolidated the two cases, granted the State Public Defender's request to appear as amicus curiae in support of the petitioners, and issued an alternative writ.

The pleadings present a single question for our determination. Does the retroactive application of the Act (Pen.Code, § 1170.2) constitute an unconstitutional usurpation of the Governor's commutation power?

I

The Act is a lengthy, complex piece of legislation enacting, repealing, and amending penal statutes in a number of the codes. It consists of some 358 sections. On June 29, 1977, two days before it became operative (and on the same day the Supreme Court stayed the injunctions herein), the Act was in part amended by Assembly Bill 476 (Stats.1977, ch. 165), which is itself lengthy and complex, consisting of some 100 sections.

Under the ISL structure, the actual prison sentences of felons were determined by the Adult Authority from within very wide statutory ranges. The Act, with some exceptions, returns the sentencing power to the courts but requires sentencing judges to impose the "middle" of three statutorily determined lengths of incarceration for each crime, unless there are "circumstances in aggravation or mitigation," in which case the longer or shorter period will be imposed. (Pen.Code, § 1170, subd. (b).) A sentence may also be increased if consecutive sentences are imposed (one-third of the middle term of each additional offense added to the sentence more if violent offenses are involved.) (See Pen.Code, § 1170.1, subd. (a).) And the sentence may be increased if certain "enhancements" are pleaded and proved (provided they are not elements of the base offense); these are (1) prior convictions with prison terms served thereon (3 years for prior violent felonies, 1 year for other prior felonies, Pen.Code, § 667.5), (2) being armed with a firearm (one additional year, Pen.Code, § 12022, subd. (a)), (3) use of a deadly or dangerous weapon (one additional year, Pen.Code, § 12022, subd. (b)), (4) personal use of a firearm (two years, Pen.Code, § 12022.5), (5) taking, damaging or destroying property valued above $25,000 (one year, Pen.Code, § 12022.6, subd. (a)), (6) taking, damaging or destroying property valued above $100,000 (two years, Pen.Code, § 12022.6, subd. (b)) and (7) infliction of great bodily injury (three years, Pen.Code, § 12022.7). Certain limitations on the number of enhancements and the total sentence which may be imposed are specified in Penal Code section 1170.1.

In prison, the Act provides for "good time" and "participation" credits to reduce the sentence by up to one-third. (Pen.Code, §§ 2930, 2931.) Upon expiration of the prison sentence, the inmate must be released on parole "for a period not exceeding one year," unless the Community Release Board (the Adult Authority's successor under the new act) for good cause waives parole. (Pen.Code, § 3000.) If his parole is subsequently revoked, the prisoner may be returned to confinement for a period not exceeding six months. (Pen.Code, § 3057.)

We note that the Act does not interfere with a court's right where otherwise appropriate to grant probation or sentence to the county jail. (Pen.Code, § 1170, subd. (a)(1).) It does however, require the Judicial Council to promulgate rules providing criteria to promote uniformity in this area. (Pen.Code § 1170.3; see also Pen.Code, § 1170, subd. (d).) Additionally, life sentences are retained for certain crimes such as first degree murder (Pen.Code, § 190); but the legislative guidelines by which the Community Release Board sets a parole date for such an offender have been significantly amended. (Pen.Code, § 3041.)

II

Penal Code section 1170.2 covers the subject of retroactive application of the Act to current inmates. Subdivision (a) directs the Community Release Board to determine what sentence an inmate would have received if he had been sentenced under the Act (disregarding good time credits but including enhancements). ⁴ Subdivision (b) then states that if this calculation results in a term which would end before a parole release date already set by the Adult Authority, or if a parole release date has not yet been set, the Community Release Board "shall establish the prisoner's parole date . . . on the date calculated under subdivision (a) unless . . . two members of the Community Release Board . . . determine that . . . (he) should serve a (longer) term." ⁵ (Emphasis added.)

The statute appears to require that such a longer term be justified on the basis of certain objective facts, viz. (1) the number of crimes of which the prisoner was convicted; (2) the number of prior convictions; (3) the fact that the prisoner was armed; or (4) that he used a deadly weapon; or (5) that he inflicted great bodily harm on the victim; this is further implied by the due process guarantees written into the law, including an inmates' right to counsel and to be "informed in writing of the extraordinary factors specifically considered determinative and on what basis the release date has been calculated." But having thus seemingly narrowed the Board's discretion, the Legislature ends on a broad discretionary note: "In fixing a term under this section the board shall be guided by, but not limited to, the term which reasonably could be imposed on a person who committed a similar offense under similar circumstances on or after July 1, 1977, and further, the board shall be guided by the following finding and declaration hereby made by the Legislature: that the necessity to protect the public from repetition of extraordinary crimes of violence against the person is the paramount consideration."

Given the discretion granted by this latter clause, it is impossible to determine in advance which ISL prisoners will receive earlier final discharges or...