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City of Susanville et al v. California Department of Corrections and Rehabilitation Et

March 13, 2012


(Super. Ct. No. 51154)

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

City of Susanville v. Cal. Dept. of Corrections



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After Loren Herzog completed his sentence for voluntary manslaughter and accessory to three murders, the California Department of Corrections and Rehabilitation (Department) was faced with the onerous and thankless task of finding a suitable parole placement for him, made all the more difficult by statutory restrictions on where he could live and by public outcry against placement anywhere. Ultimately, the Department provided Herzog a trailer located within a fenced-in compound on the grounds of High Desert State Prison and imposed severe restrictions on his movement. The City of Susanville and the County of Lassen filed a petition for a writ of mandamus to remove Herzog. The trial court ruled that his placement in Lassen County was not in the best interests of the public and ordered the Department to transfer Herzog out of Lassen County forthwith. The Department appeals.

Following oral argument in this matter, the Department informed the court of the parolee's death. We requested the parties to provide letter briefs on the question of whether the death rendered the appeal moot. The Department argues the parolee's death prevents the court from providing any relief in this matter and the issues are not likely to recur. The County disagrees, as do we.

The controversy in this matter was created by Herzog's placement in Lassen County; a change in placement is sought. Obviously, the change wrought by his death renders any change by court order futile. "However, when a pending case involves a question of broad public interest which is likely to recur between the same parties or others, 'the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot.' (In re William M. (1970) 3 Cal.3d 16, 23; see also In re Jeanette H. (1990) 225 Cal.App.3d 25, 29-30.)" (State Bd. of Education v. Honig (1993) 13 Cal.App.4th 720, 742.) As difficult and controversial as the issues raised by this case may seem to the public officials confronted by them, and as tempting as it might be to avoid them, there is no doubt that issues of this type will recur. The statutory restrictions imposed upon the placement of parolees, along with the public outcry that inevitably attends the placement of high profile parolees, assure that the issues will arise again. For that reason we choose to confront the issues raised by trial court's judgment and decline to dismiss the appeal as moot.

The question posed by the appeal is whether the Department's placement was so palpably unreasonable and arbitrary as to constitute an abuse of discretion as a matter of law. Finding no abuse of discretion, we must reverse the judgment. Neither the city, the county, nor the court can interfere with the Department's exclusive discretion to determine a parole placement according to the statutory criteria and notice requirements set forth in Penal Code sections 3003 and 3058.6.*fn1


In July 2010 the Division of Adult Parole Operations received notice that on September 18, 2010, Loren Herzog would complete his sentence for voluntary manslaughter and accessory to three murders. The Department began the process of deciding where to parole Herzog.

Because Herzog had last lived in San Joaquin County, the Department first selected San Joaquin as his parole placement. Seventeen victims and witnesses complained about the placement, an unusually high number of complaints. The Department investigated each complaint and determined that some of them showed legitimate victim and witness concerns.

Pursuant to section 3003, subdivision (f), a parolee cannot be placed within 35 miles of the actual residence of a victim or witness who objects to his placement. Thus, the Department's parole staff measured the distance from the victims' locations to Herzog's planned parole placement. The Department could not place Herzog back in San Joaquin County because his planned placement was within 35 miles of all of the legitimate victims and witnesses identified by the staff.

The Department sought alternative sites. The staff considered placing him with his sister in Elk Grove, but the city was within 35 miles of at least one of the victims. They considered Modoc County, but the county was too remote for parole staff and inaccessible to a global positioning system (GPS).

By then it was the first week of September. Parole staff investigated the possibility of placing Herzog in Lassen County. Several factors favored Lassen County. Most significantly, there were no victims or witnesses within 35 miles. Due to the proximity to High Desert State Prison and California Conservation Center, there was a formidable law enforcement presence that could track Herzog and apprehend him if necessary. Moreover, the county was more sparsely populated.

Nevertheless, the Department had to determine where Herzog would live and how he would be monitored. It carefully crafted conditions of his parole to address the safety of the people of Lassen County. On September 15 the Department issued a notice of release form to the Lassen County and Susanville law enforcement officials that provided Herzog's vital ...

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