In Re Tucker

486 P.2d 657, 5 Cal. 3d 171, 95 Cal. Rptr. 761, 1971 Cal. LEXIS 244

• Court: California Supreme Court
• Decided: June 24, 1971
• Docket: Crim. 13489
• Status: Published

Opinions

Opinion

BURKE, J.

Petitioner challenges the revocation of his parole by the Adult Authorty.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 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. 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 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.)

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 on 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; 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) 318 F.2d 225, 236-237 [115 App. D.C. 254], cert. den. 375 U.S. 957 [11 L.Ed.2d 315, 316, 84 S.Ct. 446, 447]). Moreover, in In re Schoengarih, 66 Cal.2d 295, 304 [57 Cal.Rptr. 600, 425 P.2d 200], 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 judicial act.” (See also In 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 [19 L.Ed.2d 336, 88 S.Ct. 254], 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 [19 L.Ed.2d at p. 340].) 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 [19 L.Ed.2d at pp. 340-341].) 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, 453 P.2d 441]; 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; People v. Ray, 181 Cal.App.2d 64, 69 [5 Cal.Rptr. 113], cert. den. 366 U.S. 937 [6 L.Ed.2d 848, 81 S.Ct. 1662].)

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 [24 L.Ed.2d 180, 90 S.Ct. 218]; John v. State (N.D. 1968) 160 N.W.2d 37; Beal v. Turner (1969) 22 Utah 2d 418 [454 P.2d 624, 625]; Mead v. California Adult Authority (9th Cir. 1969) 415 F.2d 767, 768; Dunn v. California Department of Corrections (9th Cir. 1968) 401 F.2d 340, 342; Ernest v. Willingham. (10th Cir. 1969) 406 F.2d 681; Rose v. Haskins (6th Cir. 1968) 388 F.2d 91, cert. den. 392 U.S. 946 [20 L.Ed.2d 1408, 88 S.Ct. 2300]; Menechino v. Oswald (2d Cir. 1970) 430 F.2d 403, 409; but see Commonwealth v. Tinson (1969) 433 Pa. 328 [249 A.2d 549]; Menechino v. Warden (1971) 27 N.Y.2d 376 [318 N.Y.S.2d 449, 267 N.E.2d 238]; Ellhamer v. Wilson (N.D.Cal. 1969) 312 F.Supp. 1245 (app. pending 9th Cir.).

*)

It is undeniable, of course, that under certain circumstances counsel could assist the prisoner in contesting the parole revocation charges. And yet the ability of counsel to assist is not dispositive of the broader question whether due process demands counsel’s presence at parole hearings. “ ‘Due process’ is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. . . . Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.” (Hannah v. Larche, 363 U.S. 420, 442 [4 L.Ed.2d 1307, 1321, 80 S.Ct. 1502]; see Sokol v. Public Utilities Commission, 65 Cal.2d 247, 254 [53 Cal.Rptr. 673, 418 P.2d 265].) Those elements of due process deemed essential for the protection of one accused of a crime are not inevitably guaranteed to one duly convicted of a crime. If the accused has been fairly tried, defended, convicted and sentenced, and has been afforded reasonable opportunity to appeal his conviction, the essential demands of due process have been fulfilled. Once the adjudicative process has ceased and the rehabilitative stage commenced, it becomes the responsibility of the Adult Authority to determine, in its discretion, the appropriate terms and conditions for the release of the offender to society. At this stage, due process only requires that the Adult Authority discharge its responsibilities in good faith, neither arbitrarily nor capriciously, and that judicial review remains available to correct abuses of discretion. (See In re McLain, supra, 55 Cal.2d 78, 85-87.)

Moreover, in determining whether or not a particular procedure violates due process requirements, we should bear in mind the probable costs and consequences involved in casting excessive burdens upon administrative machinery. (In re Martinez, supra, 1 Cal.3d 641, 649-650; Hannah v. Larche, supra, 363 U.S. 420, 442.) “If, as appellant demands, each prisoner is to appear with counsel we may reasonably anticipate that the administrative burden (including the preparation of advance notice, the subpoenaing and cross-examination of witnesses, arguments of counsel and preparation of written decisions) would be enormously increased, accompanied by the usual delays attendant upon clogged calendars.” (Menechino v. Oswald, supra, 430 F.2d 403, 410, discussing the problem in the context of parole release hearings.

The transformation of an essentially informal, post-adjudicative, administrative procedure into a judicial proceeding, with all the concomitants of a nonjury criminal trial, could ultimately lead to the abandonment of the benevolent practice of releasing prisoners to the constructive custody of parole officers. (In re Marks, supra, 71 Cal.2d 31, 48, and fn. 12; see Pope v. Superior Court, 9 Cal.App.3d 636, 641 [88 Cal.Rptr. 483].) The Adult Authority is entrusted with the grave responsibility of determining under what circumstances prisoners should be released to, and returned from, parole. Any undue interference with or restriction upon the power of the Adult Authority to revoke parole could substantially inhibit its willingness to grant the parole privilege in future cases, to the ultimate detriment of the entire penal system.

Accordingly, we conclude that petitioner was not entitled to the assistance of counsel at the parole revocation hearing.

The order to show cause is discharged and the petition for writ of habeas corpus is denied.

Wright, C. J., McComb, J., Mosk, J., and Sullivan, J., concurred.

1 Various other contentions raised by petitioner were considered and rejected by this court in connection with a prior petition filed by petitioner and need not be reconsidered here.

2 Petitioner’s statement was elicited in the course of police investigation of an Oakland murder. The interrogating officers initially explained to petitioner that he was not a suspect, and that the police were simply attempting to trace the chain of possession of the weapon. After petitioner had executed the statement admitting possession, one of the officers agreed to recommend to the parole authorities that petitioner’s parole not be revoked. The officers denied that petitioner’s statement was made in reliance upon this agreement.

3 Thus, adopting the nomenclature of criminal proceedings, the Authority has established a parole revocation “calendar” whereby each prisoner is given advance notice of a “hearing” to be held to give the prisoner an opportunity for a “personal appearance” before a panel of the Adult Authority as a final step in “adjudicating” the termination of his parole. Prior, to the hearing, the prisoner is “served” with a copy of the “charges” made against him; he is thereupon asked to “enter a plea” to these charges; if he pleads “guilty,” that plea is accepted without further inquiry; if he pleads “not guilty,” the panel reviews the “evidence” pertaining to each charge, including oral or documentary evidence submitted by the prisoner. Thereafter, the panel makes its “findings” and enters its “order” regarding parole. (See Adult Authority Resolution No. 279 [rev. July 7, 1969]; Adult Authority Policy Statement No. 22 [June 3, 1969].)

4 As stated in In re McLain, supra, 55 Cal.2d 78, 85, “The provisions for determining or redetermining sentence and for granting, suspending or revoking parole do not violate due process because of the absence of a requirement for notice or hearing. The notice of a hearing was given and required to be given in the proceedings which resulted in the original conviction. Those proceedings resulted in a conviction and the imposition of a sentence that was indeterminate, and until fixed, amounted to a maximum sentence provided for the crime in question. When the Authority reduces a maximum sentence, its action, in the very nature of things, is tentative and may be changed for cause."

5 Of course, in most cases revocation of parole necessarily affects the length of the term which defendant must serve, for under Adult Authority Resolution No. 171 [1951], “when paroles are cancelled, suspended, and/or revoked, the previous action fixing term will be rescinded (except in those cases where the prisoner shall be considered as serving the maximum) and the prisoner shall be considered as'serving the maximum term as prescribed in the Indeterminate Sentence Law, subject to further order of the Adult Authority. . . .” However, the actual sentence previously imposed by the court remains unaffected by either the parole or subsequent revocation thereof.

Reporter’s Note: The opinion of United States Court of Appeals, Ninth Circuit reversing orders granting writs of habeus corpus was filed July 7, 1971, 445 F.2d 856.