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In Re Curtis Lee Sledge On Habeas Corpus.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 13, 2010

IN RE CURTIS LEE SLEDGE ON HABEAS CORPUS.

The opinion of the court was delivered by: Nares, Acting P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Petition for writ of habeas corpus. Relief granted.

Petitioner Curtis Lee Sledge was sentenced in 1981 to 26 years to life, plus a determinate six-year term, after a jury found him guilty of first degree murder and two counts of robbery. Sledge, now nearly 60 years old, has remained in prison for the past 29 years.

Sledge first became eligible for parole in 2000, but the Board of Parole Hearings (BPH) did not find him suitable for parole until his June 2009 suitability hearing. At that time, a panel of the BPH concluded Sledge was suitable for parole because he did not pose an unreasonable risk of danger to society if released. That decision was based, in part, on Sledge's "positive parole plans . . . consist[ing] of [Sledge] being accepted to the Salvation Army Rehabilitation Center" in Sacramento, California. However, the BPH's Decision Review Unit (DRU) referred the matter to the full BPH with the recommendation that the panel's decision be disapproved, and a rehearing be set, because the DRU was unable to confirm the viability of Sledge's planned residence in the Salvation Army Rehabilitation Center or two other identified residences. The full BPH ultimately disapproved the panel's decision to grant parole, and ordered a rehearing "on the next available calendar with the same hearing panel if feasible." At the rehearing, a new panel found Sledge unsuitable for parole.

Sledge filed a petition for writ of habeas corpus in the trial court; that petition was denied. Sledge now petitions this court for a writ of habeas corpus challenging the BPH's decision to vacate the first panel's grant of parole.

I

FACTS

A. The Commitment Offenses

On August 26, 1980, while on probation for a prior offense, Sledge, in the course of a robbery, threatened a victim with a knife. Sledge was arrested the following day but was apparently released. Approximately two weeks later, Sledge again used a knife to rob a 68-year-old man. On this occasion, however, Sledge stabbed and killed the victim during the robbery.

B. Sledge's Prior Criminal History

Sledge's arrest and conviction record is lengthy, and included property crimes, drug crimes, and acts involving violence.

C. Sledge's Disciplinary Record in Prison

Sledge has been disciplined numerous times while in prison, but his last "CDC 115"*fn1 was in 1999. It does not appear any of the rule violations involved violence, and he was discipline free for 10 years prior to his 2009 parole hearing.

D. Sledge's Psychological Evaluation

A psychologist evaluated Sledge and his report was "generally favorable."

E. Sledge's Rehabilitative Efforts

The evidence showed, and the BPH did not question, that Sledge's conduct in prison has shown substantial progress. He has not been disciplined in any fashion for the past 10 years. He has furthered his educational and vocational training, and he has participated in self-help and therapy groups.

F. Parole Plans

Sledge's parole plans became the flash-point for the present dispute. At his June 2009 suitability hearing, Sledge supported his proposed postrelease living arrangements by proffering a letter from a transitional facility for veterans (the Salvation Army Rehabilitation Center in Sacramento, California) stating Sledge was eligible and could enter that facility on his release.

II

HISTORY OF PROCEEDINGS

Because Sledge's petition asserts that he is entitled to relief because of the manner in which the decision to deny him parole was reached, we describe the proceedings in detail.

A. The June 2009 Hearing

Sledge's minimum eligible parole date was in 2000. At his 2009 parole hearing, the panel considered Sledge's testimony at the hearing, as well as the written reports, and concluded he was suitable for parole. The panel's decision to release Sledge was based, in part, on his having "made realistic plans for release" (Cal. Code Regs., tit. 15, § 2402, subd. (d)(8)) because he had identified the Salvation Army Rehabilitation Center in Sacramento, California as the facility that would provide his postrelease housing and rehabilitative services. The panel advised Sledge the decision would not be final until it had been reviewed by the DRU and the Governor's office.

B. The DRU Investigation and Referral

In July 2009 the DRU attempted to confirm Sledge's planned residence in the Salvation Army Rehabilitation Center, and learned the facility had reservations about admitting him because of his commitment offense. The DRU also investigated two other facilities and was unable to confirm that Sledge would be admitted to either of them. Because the DRU could not confirm the viability of Sledge's planned postrelease residence, the DRU referred the matter to the full BPH with the recommendation that the panel's decision be disapproved and a rehearing be set as soon as possible with the same panel, if feasible.

C. The Subsequent Hearings and October 7, 2009,Determination

On September 3, 2009, the BPH gave Sledge notice that it would consider his suitability for parole at a meeting to be held on September 15, 2009, and invited him to submit a written statement. On September 10, 2009, Sledge was apparently accepted into the "Re-Entry Transitional Program" in Placer County (the "Placer County facility"), and at their en banc meeting on September 15, 2009, the BPH ruled that "[i]f the new proposed residence is verified as viable before the decision review period expires, then the grant [of parole] shall be upheld [but] [i]f not, then the matter shall be scheduled for a rehearing on the next available calendar with the same panel if feasible."

On October 7, 2009, the BPH ruled to disapprove the panel's suitability determination and to schedule a rehearing for the next available calendar with the same panel, if feasible. The stated basis for this ruling was that "[s]ubsequent investigation of [the Placer County facility] was found not viable" by the Division of Adult Parole Operations (DAPO).

D. The Rehearing

On December 1, a new panel conducted a rehearing on Sledge's suitability and concluded he was not currently suitable for parole for reasons only partly attributable to his postrelease residential plans.

E. The Habeas Proceedings

Sledge petitioned the San Diego County Superior Court for a writ of habeas corpus. The trial court denied the petition. Sledge then petitioned this court for a writ of habeas corpus.

III

ANALYSIS

Sledge contends the October 7, 2009, BPH decision must be vacated because the decision was reached in violation of his rights under the procedure that governs parole consideration hearings.*fn2 Sledge asserts the BPH disapproved the panel's determination (1) in violation of the strictures identified in Penal Code*fn3 section 3041 and the BPH's regulations (see Cal. Code Regs., tit. 15, § 2041), (2) without evidentiary support for the decision, and (3) in violation of procedural due process protections.*fn4

A. Applicable Law

Inmates receive parole consideration hearings from panels and, although panel decisions often state that they "grant" parole, this is not technically correct. Instead, panel decisions "are proposed decisions [which] shall be reviewed prior to their effective date." (Cal. Code Regs., tit. 15, § 2041, subd. (a).) Under the statutory scheme, a decision of a panel finding an inmate suitable for parole "shall become final within 120 days of the date of the hearing. During that period, the board may review the panel's decision. The panel's decision shall become final . . . unless the board finds that the panel made an error of law, or that the panel's decision was based on an error of fact, or that new information should be presented to the board, any of which when corrected or considered by the board has a substantial likelihood of resulting in a substantially different decision upon a rehearing. . . ." (§ 3041, subd.(b).)

The regulations implementing section 3041 provide that "[p]roposed decisions made at hearings for prisoners serving a sentence of life with the possibility of parole may be reviewed by the chief counsel or a designee. Grants of parole shall be reviewed by the chief counsel or a designee. . . . Within 110 days of the hearing, the chief counsel, or a designee, may: (i) affirm the proposed decision, (ii) order a new hearing, or (iii) modify the proposed decision without a new hearing. No decision shall be modified without a new hearing if the decision would be adverse to the prisoner's interest. If any new information is received by the chief counsel or a designee that is adverse to a life prisoner, the new information will be forwarded to the prisoner and the prisoner's attorney. The prisoner and the attorney will be afforded an opportunity to respond in writing within a reasonable amount of time to the new information. In cases where the chief counsel recommends a modification where the decision is adverse to the prisoner's interest, the matter shall be referred to the full board for en banc review. No proposed decision shall be referred for a new hearing without a majority vote of the board following a public hearing. . . ." (Cal. Code Regs., tit. 15, § 2041, subd. (h), italics added.)

B. Analysis

The BPH is empowered to review a panel's decision, but the panel's decision will be the final decision unless the BPH makes specific determinations. First, the BPH must determine that one of three things infected the panel's proceedings: (1) the panel made an error of law, (2) the panel's decision was based on an error of fact, or (3) the panel was unaware of new information that should have been presented. Second, the BPH must determine that, if the identified error is corrected or the new information is considered on rehearing, there is a substantial likelihood that a different decision would be made at the rehearing. (§ 3041, subd. (b).) When making these twin determinations, the BPH "shall consult with the commissioners who conducted the parole consideration hearing." (Ibid.)

Sledge Was Denied Procedural Due Process

Here, the only "error of fact" or "new information" identified by the BPH involved the DRU's posthearing determination that the Sacramento facility, originally identified by Sledge as the site that would provide for his postrelease residence and support services, was not available. However, Sledge timely responded to that determination by informing the BPH that the Placer County facility was an appropriate substitute facility for his postrelease residence and support services, including housing, employment and sobriety services. The BPH, apparently recognizing (presumably after fulfilling its obligation under section 3041, subdivision (b), of "consult[ing] with the commissioners who conducted the parole consideration hearing") there was no substantial likelihood that a substantially different decision would be made at a rehearing as long as the Placer County facility was a viable substitute,*fn5 issued its September 15, 2009, order stating that Sledge's parole would be confirmed as long as "the new proposed residence is verified as viable before the decision review period expires." However, the order also provided that, if the BPH determined the new proposed residence was not viable, "the matter shall be scheduled for a rehearing on the next available calendar with the same panel if feasible."

On October 7, 2009, the DRU recommended that the panel's grant of parole be disapproved, and the matter scheduled for rehearing, because "[s]ubsequent investigation of a residential facility in Placer County was found not viable by [the] DAPO." However, Sledge was provided neither notice of this new information nor an opportunity to respond to the new information (as required under Cal. Code Regs., tit. 15, § 2041, subd. (b)) before the BPH acted (based on this new information) to disapprove the panel's decision and refer Sledge's matter to a rehearing.*fn6

We conclude that, on the facts of this case, Sledge was denied his due process rights. Although there may be some uncertainties about the outer boundaries of what due process protections exist for an inmate seeking to obtain (or to preserve) his or her grant of parole, there is little dispute that the inmate is entitled to receive notice of adverse facts and to have an opportunity to contest those facts. (See, e.g., In re Prewitt (1972) 8 Cal.3d 470, 476 [due process protection for revocation of unexecuted grant of parole]; Greenholtz v.Inmates of Nebraska Penal and Correctional Complex (1979) 442 U.S. 1, 14-16 [parole consideration hearing]; Morrissey v. Brewer (1972) 408 U.S. 471, 485-489[parole revocation proceeding].) The applicable regulations confirm that no decision by a panel may be modified in a manner that would be "adverse to the prisoner's interest" without a new hearing, that "any new information . . . received by the chief counsel . . . that is adverse to a life prisoner . . . will be forwarded to the prisoner and the prisoner's attorney," and that the prisoner and the attorney "will be afforded an opportunity to respond in writing . . . to the new information." (Cal. Code Regs., tit. 15, § 2041, subd. (h).)

These regulatory provisions, codifying the due process protections afforded to a prisoner when the BPH contemplates modifying a panel's grant of parole, were not complied with in this case. Sledge was not notified that the pivotal issue--whether the Placer County facility was "viable"--had been determined adversely by the DAPO (much less of the factual underpinnings for the DAPO's conclusion) before the BPH acted en banc to disapprove the panel's grant of parole based on the new information provided to the BPH by the DRU. Furthermore, Sledge was not afforded an "opportunity to respond in writing . . . to the new information" before the BPH acted on that new information. We conclude the failure to provide Sledge with either notice or an opportunity to respond denied him his rights under both the administrative regulations and under the procedural due process protections accorded to prisoners seeking parole.

The Denial of Procedural Due Process Requires Reversal

Sledge asserts, and the People dispute, that the error was prejudicial. Although neither party has provided relevant authority concerning the applicable standard for testing whether the error is reversible, cases from other areas of the law convince us the error mandates reversal.

Courts generally hold that an administrative agency is bound by and must follow its own regulations (see, e.g., Peabody v. Home Ins. Co. (2000) 170 Vt. 635, 639), and the agency must observe its own rules, regulations or procedures that have an impact on individual rights and obligations or that confer important procedural benefits. (United States ex rel. Accardi v. Shaughnessy (1954) 347 U.S. 260, 265-267.) Where the proceedings attendant to the agency's adjudicatory action do not comply with significant due process protections accorded under the applicable departmental regulations, the action must be vacated and remanded for proceedings that accord the requisite procedural protections. (See, e.g., Vitarelli v. Seaton (1959) 359 U.S. 535, 545-546.) The BPH's failure to follow its own regulations alone is sufficient to require reversal of the October 7, 2009, action by the BPH.

Other courts, examining analogous situations, have also concluded an adjudicatory action taken without according the party the due process right of notice and opportunity to respond is automatically reversible. In Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, the trial court held a status hearing and, at that hearing, followed the recommendations in a status report filed by the county by ordering termination of reunification services and setting a hearing to determine whether to terminate parental rights. However, the status report had not been served on the parent 10 days prior to the hearing, as required by Welfare and Institutions Code section 366.21, subdivision (c), but was instead served on the parent on the morning of the hearing. (Judith P., at pp. 539-543.) In evaluating whether the prejudice from depriving the parent the prescribed notice should tested under a harmless-error test for so-called "trial errors" or a mandatory-reversal test for so-called "structural errors," the Judith P. Court observed:

"Applying the trial versus structural error analysis here, the failure to give a parent or minor adequate time to prepare for a section 366.21 hearing is an error that does not happen during the presentation of the case; in other words, it does not happen during the section 366.21 hearing. Rather, it happens before the hearing. Nor does this kind of error allow an after-the-event assessment of the error in relation to what did happen at the hearing. If a section 366.21 hearing is actually held, albeit with less than 10 days' notice of the contents of the status report, it is not possible to do an after-the-event assessment of the error. Unlike erroneous admission of evidence or improper instructions, which can be reviewed in light of the evidence or instructions as a whole, the impact of having less than the statutorily mandated minimum time within which to (1) confer with one's lawyer, (2) contact witnesses, (3) obtain documents, (4) prepare for examination and cross-examination, and (5) hone one's arguments, is impossible for either a trial court or an appellate court to assess. Thus, these factors indicate that the error is not a trial error.

"In addition, other factors suggest that the failure to give adequate opportunity to prepare for a section 366.21 hearing is a structural error. 'Structural' errors involve 'basic protections, . . . [without which] a [dependency] trial cannot reliably serve its function as a vehicle for determination of [whether a child cannot be safely returned to its parent's custody], and no [continuing deprivation of custody, let alone permanent termination of parental rights] may be regarded as fundamentally fair.' Timely notice of the 'charges' against a parent, and the witnesses who are able to give evidence in support thereof, is a fundamental protection, without which no dependency trial can reliably serve its function as a vehicle by which the trier of fact can determine whether the parent is making progress so as to be entitled to further reunification services or even reunification, or whether it would be detrimental to the children to reunify with the biological family. If a section 366.21 hearing does not provide parents and children with the minimal due process required by statute, the resulting process, in the absence of a knowing and intelligent waiver of the right to such due process, cannot be regarded as fundamentally fair. It is fundamentally unfair to terminate either a parent's or a child's familial relationship if the parent and/or child has not had an adequate opportunity to prepare and present the best possible case for continuation of reunification services and/or reunification." (Judith P. v. Superior Court, supra, 102 Cal.App.4th at pp. 557-558.)

Similar considerations convince us the error here requires reversal. Because Sledge was not provided notice (in advance of the action taken at the en banc hearing) that the Placer County facility was deemed not viable, or the reasons for that conclusion, it is not possible for a court to do an after-the-event assessment of the impact of that error on the ultimate order, because Sledge was deprived of the opportunity to confer with his lawyer, contact witnesses, obtain documents, offer evidence or arguments contesting that conclusion, or proffer evidence that other facilities provided acceptable alternatives.*fn7

The People assert that any error should be deemed "inconsequential" because Sledge was provided (1) notice of the basis for the en banc order setting a rehearing and (2) the opportunity to be heard before a new panel at the rehearing two months later. We are not persuaded by the People's argument. The DRU referred the matter to the full BPH, with the recommendation the original panel's decision be disapproved, solely because of concerns over the viability of the Sacramento facility. The BPH--after giving notice to Sledge about those concerns and learning (from Sledge's written submission) that he had been accepted into the Placer County facility--ruled to uphold the grant of parole (and obviate a de novo rehearing) as long as "the new proposed residence is verified as viable." Thus, because the BPH's only condition to upholding the panel's grant of parole was the viability of the Placer County facility, and Sledge was deprived of the opportunity to demonstrate that condition was (or should have been deemed) satisfied, the error was consequential: Sledge's grant of parole by the first panel, the grant of which was conditionally approved by the BPH after en banc review, was ultimately disapproved.

The Question of the Remedy and Disposition

Our conclusion that the BPH's order of October 7, 2009, must be vacated presents a variant of the question that has perplexed the courts in the parole context: what is the appropriate remedy under the circumstances presented? Our Supreme Court has long recognized (see In re Sturm (1974) 11 Cal.3d 258, 268), and more recently reaffirmed (see In re Rosenkrantz (2002) 29 Cal.4th 616), that an inmate's right to be accorded procedural due process protections in the hearings at which he or she is considered for parole "could not exist in any practical sense without a remedy against their abrogation." (Id. at p. 655; In re Sturm, at pp. 268-269.) Our order vacating the BPH's order of October 7, 2009, reinstates the BPH's en banc order, entered September 15, 2009, that if Sledge's proposed residence is verified as viable "before the decision review period expires, then the grant [of parole] shall be upheld [but] [i]f not, then the matter shall be scheduled for a rehearing on the next available calendar with the same panel if feasible." (Cf. In re Tokhmanian (2008) 168 Cal.App.4th 1270, 1276 [trial court order vacating BPH decision to disapprove panel decision to grant parole had effect of restoring status quo ante and provided new period in which Governor could act to review panel].)

We perceive the appropriate disposition on remand is analogous to the order entered in In re Johnson (1995) 35 Cal.App.4th 160. In Johnson, the Board of Prison Terms (the predecessor to the BPH) rescinded a prisoner's parole release date on the grounds that the granting panel had failed to give adequate weight to certain evidence and considerations. The appellate court concluded the board could have found cause to rescind the parole date (i.e. the granting panel had failed to give adequate weight to certain adverse evidence and factors) but also concluded the board's decision was reached only after the board had violated its own procedural rules (as well as general principles of due process) when it denied the prisoner the opportunity to be heard on the adverse evidence. (Id. at pp. 168-172.) Johnson held the due process violation required reversal of the order, and therefore granted the prisoner's petition for habeas corpus with directions to the board to vacate its decision, to schedule and commence a new hearing within 30 days of the finality of its opinion, and to conduct that hearing "on the [issue] it found persuasive [and] in accordance with due process and the Board's rules." (Id. at pp. 172-173.)

We similarly direct the BPH to schedule and commence a new hearing, to be conducted in accordance with due process and the BPH's rules, on the issue it found persuasive when it originally considered the panel's decision granting Sledge parole: whether Sledge's plans for a proposed replacement for his original postrelease living arrangements are sufficiently viable that, if his newly proposed replacement residence had been considered by the original panel, there is no substantial likelihood the panel would have made a substantially different decision. (§ 3041, subd. (b).) Considering the administrative practicalities engendered by our decision, and recognizing that separation of powers concerns caution the courts to provide the maximum breathing room for the executive branch to carry out its powers and duties (cf. In re Prather (2010) 50 Cal.4th 238, 253-257), we conclude the appropriate order is (1) to reinstate the BPH's September 15, 2009, en banc order effective on issuance of the remittitur, and (2) to order the review period provided under section 3041, subdivision (b), within which the BPH may either permit the panel's decision to become final or may vacate the panel's decision and order a rehearing in compliance with section 3041, subdivision (b), and California Code of Regulation, title 15, section 2041, be deemed to commence on issuance of the remittitur.

Disposition

Relief in response to Sledge's petition for a writ of habeas corpus is granted. The BPH shall vacate its order of October 7, 2009. The BPH's September 15, 2009, order shall be reinstated effective on issuance of the remittitur. It is further ordered that the review period provided under section 3041, subdivision (b) (within which the BPH may either permit the panel's June 2009 decision to become final or may vacate the panel's decision and order a rehearing in compliance with § 3041, subd. (b), and Cal. Code Regs., tit. 15, § 2041) shall be deemed to commence on issuance of the remittitur. Pursuant to California Rules of Court, rule 8.387(b)(3)(A), this opinion shall be final as to this court five days after it is filed.

McDONALD, J.

WE CONCUR: McINTYRE, J.


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