(Alameda County Super. Ct. Nos. RG10496924/63187C)
The opinion of the court was delivered by: Banke, J.
Schoenfeld v. Board of Parole Hearings
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Richard Schoenfeld is currently incarcerated for crimes he committed approximately 35 years ago. On October 30, 2008, the Board of Parole Hearings (Board) found him suitable for parole. On August 14, 2009, at a hearing to calculate his release date under applicable indeterminate sentence law (ISL) regulations, the Board panel stated its disagreement with the 2008 suitability finding and ordered a rescission hearing. It did not calculate an ISL release date. Schoenfeld filed a petition for a writ of ordinary mandamus in superior court challenging the setting of a rescission hearing. He appeals from the judgment denying his petition. As he did below, Schoenfeld contends the 2008 suitability finding was "final" and thus precluded the Board from taking any action on August 14, 2009, other than calculating his ISL release date. He further asserts scheduling a rescission hearing pursuant to current regulations is an ex post facto violation. We affirm the judgment denying his writ petition.
The facts and circumstances of Schoenfeld's crimes are set forth in our opinion affirming his conviction, People v. Schoenfeld (1980) 111 Cal.App.3d 671, and we do not recite them again here. Suffice it to say, in 1977, he pled guilty to 27 counts of kidnapping for ransom. He was sentenced to concurrent life terms with a minimum term of six months on each count pursuant to the then existing provisions of the Youthful Offenders Act (former Pen. Code, § 1202b, repealed by Stats. 1976, ch. 1139, § 274, eff. July 1, 1977). (People v. Schoenfeld, supra, 111 Cal.App.3d at pp. 674-676 &, fn. 3.) Because the crime took place July 15, 1976, Schoenfeld was committed under the ISL sentencing scheme in effect until July 1, 1977.
On October 30, 2008, at his twentieth parole consideration hearing, the Board hearing panel found Schoenfeld suitable for parole. Applying regulations applicable to life prisoners sentenced under the determinate sentencing law (DSL) (Cal. Code Regs., tit. 15, §§ 2282-2290), the panel calculated his term to be over 187 years.
Pursuant to Penal Code section 3041, subdivision (b),*fn1 the hearing panel's finding and decision was not "final" for 120 days. (§ 3041, subd. (b).) During that period of time, the Board could choose to review the panel's decision. (§ 3041, subd. (b).) On March 10, 2009, the Board notified Schoenfeld it approved the panel's suitability finding.
The Board then set a hearing pursuant to In re Stanworth (1982) 33 Cal.3d 176, to determine Schoenfeld's term under the ISL, which, if shorter than the term calculated under the DSL, would take precedence. The ISL hearing was initially set for June 2009, but then rescheduled to August 14, 2009.
At the outset of the August 14 hearing, the Board panel members refused to allow Schoenfeld's attorney to participate on the ground that under Board rules in effect at the time Schoenfeld was sentenced under the ISL, inmates had no right to be represented by counsel at a term setting hearing.*fn2 However, rather than proceeding with the scheduled task of determining Schoenfeld's ISL term, the panel stated it had reviewed the record of the 2008 parole hearing and concluded it "was unclear whether the granting panel fully considered [Schoenfeld's] current mental state or [his] attitude toward the crime as it relates to [his] remorse, institutional adjustment, and insight into the causes and conditions of the commitment offense so as to insure that [he] no longer pose[d] a current risk of danger if released to society." The panel stated it "found that the grant on October the 30th of 2008, may be an improvident grant based upon fundamental errors or omissions of fact, and as such, the Panel is ordering that a rescission hearing be conducted, should be conducted pursuant to the Code of Regulations Title 15, 2450 and 2451(c)." It issued a written order, noting its decision to order a rescission hearing was "subject to decision review pursuant to 15, § 2041(f)."
Five days later, the Board's central office scheduled a rescission hearing for January 26, 2010. There have since been numerous postponements and no hearing has yet been held.
On December 7, 2009, Schoenfeld filed a petition for writ of mandamus in the San Luis Obispo County Superior Court (he is incarcerated at the San Luis Obispo Men's Colony) seeking a stay of the rescission hearing and a writ ordering the Board to cancel it. On January 14, 2010, the San Luis Obispo Superior Court transferred the matter to Alameda County Superior Court. In March, Schoenfeld filed a motion for a preliminary injunction to enjoin the rescission hearing. On April 12, 2010, the trial court denied his motion and petition for writ of mandate on two grounds: (1) Schoenfeld impermissibly sought writ relief in connection ...