Board of Prison Terms v. Superior Court

Opinion

I. INTRODUCTION

In these original proceedings, the Board of Prison Terms (Board) seeks extraordinary relief from the superior court’s orders to show cause issued in the habeas corpus proceedings pertaining to Viet Mike Ngo (In re Ngo, case No. 127611), Rolando Gaoiran (In re Gaoiran, case No. 105491), Daniel Bettencourt (In re Bettencourt, case No. 79903), and Donald Ray Lewis (In re Lewis, case No. 68038.) The Board contends that the superior court exceeded its jurisdiction when it issued orders to show cause that require the Board to respond to claims not expressly raised in the habeas corpus petitions. The Board also contends that the superior court exceeded its jurisdiction when, on its own motion, it incorporated a discovery order in the orders to show cause in the Ngo and Gaoiran cases. The discovery orders require the Board to produce the decision pages for all of the several thousand Board parole suitability hearings that were held in 2003.

For reasons that we will explain, we will issue peremptory writs of mandate vacating the orders to show cause and the discovery orders and

In his points and authorities in support of the habeas corpus petition, Ngo also argued that the Board violated due process by denying parole to approximately 98 percent of inmates, although section 3041, subdivision (a), provides that the Board “shall normally set a parole release date.” Further, Ngo claimed that the Board’s failure to fix his prison term at a number of years proportional to his crime violated his federal due process rights.

B. The Gaoiran Matter (H028006)

During a family Christmas party in 1985, Rolando Gaoiran had an argument with Jose Torres in which Gaoiran believed Torres threatened his life. Gaoiran walked away, but then shot Torres two times with a handgun. After Torres fell to the floor, Gaoiran approached him and shot him in the head. Torres’s family and friends were present at the Christmas party. Gaoiran pleaded guilty to second degree murder (§ 187) in 1986, and he received a sentence of 15 years to life.

Parole Board Decision

A parole suitability hearing was held before the Board on December 19, 2003. At the conclusion of the hearing, the Board issued a one-year denial of parole. The Board’s decision was based on its finding that Gaoiran was not suitable for parole and his release would pose an unreasonable risk to public safety. The primary reason for finding Gaoiran unsuitable was the nature of the commitment offense, which the Board described as being “carried out in a vicious and brutal manner” demonstrating “an exceptionally insensitive disregard for human suffering.” The Board also found Gaoiran’s motive inexplicable and trivial in relation to the offense and recommended that he participate in anger management and self-help programming.

Habeas Corpus Petition

Gaoiran filed a petition for writ of habeas corpus in propria persona in the superior court, in which he challenged the Board’s parole denial. The petition states the following nine issues: “1. The Board failed to comply with the statutory requirements of [section] 3041. [f] 2. [Gaoiran’s] Federal Due Process Rights were violated by the Board’s failure to set a term; follow the

Finally, the Gaoiran order to show cause includes the following comments by the superior court: “This Court will also note that the Board’s ‘conclusion’ that ‘the motive for the crime was inexplicable and very trivial in relationship to the offense,’ appears Kafkaesque. In the same sentence the Board announces that it cannot determine what the motive is and that it finds it to be trivial. [Fn. omitted.]” (Original underscore.) The order to show cause then directs the Board to “explain why this example of ‘reasoning,’ is not indicative of the Board’s entire approach to [Gaoiran’s] hearing.”

C. The Lewis Matter (H028070)

Donald Ray Lewis pleaded guilty to murder in the first degree (§ 187) in 1978. He was sentenced to life with the possibility of parole on the murder count. The murder occurred in 1977 when Lewis had a confrontation with the victim, Allen LaBonte, about a marijuana purchase. Lewis hit LaBonte on the head with a rock, crushing his skull. Lewis then took LaBonte’s knife and stabbed him several times in the face and neck. After the stabbing, Lewis drove off in LaBonte’s car. LaBonte’s body was later discovered in a flood control channel.

Parole Board Decision

A parole suitability hearing was held on December 15, 2003. The Board denied parole at the conclusion of the hearing on the ground that Lewis was not suitable for parole and his release would pose an unreasonable risk of danger to public safety. The finding of unsuitability was based largely on the circumstances of the murder, which the Board found was “carried out in an especially cruel and callous manner,” with an inexplicable motive, and demonstrated “an exceptionally callous disregard for another human being.” The Board also found that Lewis’s pattern of escalating criminal conduct and unstable social history were factors weighing against parole suitability and recommended that Lewis upgrade vocationally and participate in self-help programming.

Habeas Corpus Petition

Lewis filed a petition for writ of habeas corpus in propria persona in the superior court challenging the Board’s denial of parole on eight grounds,

Order to Show Cause

On September 21, 2004, the superior court issued an order to show cause that directed the Attorney General to “address all claims or be deemed to have conceded them,” and also “highlighted several aspects of the [habeas corpus] petition which deserve special attention.” The “highlighted” aspects include (1) whether the denial of parole after 25 years of incarceration violated Lewis’s plea bargain, where it was “anticipated by Defense Counsel, the Deputy District Attorney, and the Superior Court that if [Lewis] behaved well in prison he would be paroled after ‘maybe about 11 years, perhaps maybe even 15 years;’ ” and (2) “a potentially related violation of the plea in that the Board has recharacterized [Lewis’s] crime as special circumstances murder and denied parole on this basis.”

The superior court also incorporated the Honesto order in the Lewis order to show cause, with the following accompanying statement: “Another issue to be given particular attention is a potentially related violation of the plea in that the board has recharacterized Petitioner’s crime as special circumstances murder and denied parole on this basis. It would seem to be a violation of the plea in which the Executive Branch ‘stipulates’ that the crime is only of the first degree for the [Board] to ignore that stipulation and recharacterize it as deserving LWOP [life without possibility of parole]. This Court recently issued a Final Order granting relief under these circumstances and Respondent is ordered to show cause on this point as well. That Final Order is attached and incorporated into this Order To Show Cause so that Respondent can understand the scope of the argument and analysis that should be presented.”

The order to show cause in the Lewis habeas corpus proceeding differs from the Ngo order to show cause and the Gaoiran order to show cause because it does not include a discovery order.

D. The Bettencourt Matter (H028022)

Daniel Bettencourt pleaded guilty to second degree murder (§ 187) in 1982 and received a sentence of 15 years to life. The murder took place in 1981. Bettencourt and a friend went to the home of another man, Mark Jones, to confront Jones about his relationship with a woman whom Bettencourt considered to be his girlfriend. A fight ensued and, as Bettencourt and Jones were fighting on the floor, Bettencourt’s friend began stabbing Jones with a screwdriver. The friend then obtained a kitchen knife and stabbed Jones several times in the chest. Bettencourt did nothing to stop the killing and helped his friend dispose of Jones’s body by dumping it over a cliff.

Parole Board Decision

The Board held a parole suitability hearing on July 24, 2002. The Board denied parole after finding that Bettencourt was not suitable for parole and

Habeas Corpus Petition

Bettencourt filed a petition for writ of habeas corpus in propria persona in the superior court, in which he sought his release on parole. He asserted three grounds for his claim that the Board had erroneously denied parole: (1) “The Board violated Penal Code [section] 3041 and [Bettencourt’s] due process rights by failing to properly consider and weigh the nature of his commitment offense, including consideration of what constitutes a uniform term for like offenses, in determining his suitability for parole”; (2) “The Board’s denial of a parole date for [Bettencourt] in 2002 was arbitrary and capricious because it is not supported by ‘some evidence’ that his release would pose an unreasonable risk to public safety”; and (3) “The Board relied upon public outcry to deny [Bettencourt] parole for four years, violating [Bettencourt’s] due process rights to due consideration of his sixth parole application.” (Capitalization omitted.)

Order to Show Cause

On September 7, 2004, the superior court ordered the Attorney General to show cause why Bettencourt was not entitled to the relief sought in his habeas corpus petition. The order also includes the superior court’s direction to the Attorney General to respond to the issue of whether the parole denial constituted a violation of Bettencourt’s plea bargain. The order states, “Despite the weight of the evidence, the Board announced a conclusion that ‘the offense was carried out in a dispassionate and calculated manner,’ akin to first degree murder, and refused to set a parole date (even though [Bettencourt] has exceeded every applicable matrix designation). Need a court examine the record for ‘some evidence’ that the crime is first degree murder when the executive branch stipulated in the first instance that the crime would be ‘fixed’ and ‘set’ at ‘second degree’? Does the Board have the power to ignore, and thus nullify, the plea? [|] . . . [][] Respondent should be able to explain what ultimate benefit [Bettencourt] was given, [f] Respondent must address this, as well as every other, issue raised in the instant petition.”

A. Availability of Writ Relief

Writ review of an interim order, such as an order to show cause, is rarely granted because an interim order is reviewable on appeal from the final judgment. However, “when the remedy by appeal would be inadequate or the issues presented are of great public importance and must be resolved promptly,” writ relief is available. (Powers v. City of Richmond (1995) 10 Cal.4th 85 , 113 [ 40 Cal.Rptr.2d 839 , 893 P.2d 1160 ]; see Litmon v. Superior Court (2004) 123 Cal.App.4th 1156 , 1166 [ 21 Cal.Rptr.3d 21 ].)

Additionally, writ review is appropriate in discovery matters where it is necessary to address “questions of first impression that are of general importance to the trial courts and to the [legal] profession, and where general guidelines can be laid down for future cases.” (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180 , 185-186, fn. 4 [ 23 Cal.Rptr. 375 , 373 P.2d 439 ]; see People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980 , 987 [ 114 Cal.Rptr.2d 760 ].)

In the present cases, the Board argues that appellate remedies are not adequate because the orders to show cause require the Board to spend its limited resources answering issues that real parties did not raise in their petitions and responding to improperly ordered discovery. We agree that the remedy by appeal is inadequate under the unusual circumstances of these cases.

Moreover, writ review is appropriate to provide guidance with respect to the following issues in the area of habeas corpus procedure: (1) whether the superior court has the authority to issue an order to show cause that requires the Board to respond to claims not expressly raised in the petition for writ of habeas corpus; and (2) whether the superior court may order discovery in a habeas corpus proceeding in the absence of a discovery request by a party. Our resolution of these issues is undertaken in the context of the statutory scheme for the Board’s parole suitability decisions and is guided by the well-established procedure that governs a petition for writ of habeas corpus seeking relief from an adverse parole suitability decision.

B. The Statutory Scheme for Parole Suitability Decisions

Because the Board’s writ petitions all arise from habeas corpus proceedings that involve a challenge to the Board’s decision that a life prisoner is unsuitable

C. The Procedure Governing Habeas Corpus

Having considered the statutory scheme that governs parole suitability decisions, we next review the well-established procedure that governs a petition for writ of habeas corpus, including the habeas corpus petitions in the cases at bar. As the California Supreme Court has emphasized, “The rules governing postconviction habeas corpus relief recognize the importance of the ‘Great Writ,’ an importance reflected in its constitutional status .. ..” (In re Clark (1993) 5 Cal.4th 750 , 763-764 [ 21 Cal.Rptr.2d 509 , 855 P.2d 729 ], fn. omitted.) “Indeed, the writ has been aptly termed ‘the safe-guard and the palladium of our liberties’ [citation] and is ‘regarded as the greatest remedy known to the law whereby one unlawfully restrained of his [or her] liberty can secure his [or her] release . . . .’ [Citation.]” (Id. at p. 764) “The writ has been available to secure release from unlawful restraint since the founding of the state. (Cal. Const. of 1849, art. I, § 5; Stats. 1850, ch. 122, p. 134 [Citations.]” (Ibid.)

Our Supreme Court has summarized the rules governing habeas corpus relief in several decisions. In People v. Duvall (1995) 9 Cal.4th 464 [ 37 Cal.Rptr.2d 259 , 886 P.2d 1252 ], the court stated the requirements for a habeas corpus petition. “To satisfy the initial burden of pleading adequate grounds for relief, an application for habeas corpus must be made by petition, and ‘[i]f the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists.’ (§ 1474, subd. 2.) The petition should both (i) state with particularity the facts on which relief is sought [citations], [and] (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [Citations.]” (People v. Duvall, supra, 9 Cal.4th at p. 474.) “ ‘Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.’ [Citations.]” (Ibid.)

Our Supreme Court explained the role of the court in habeas corpus proceedings in People v. Romero (1994) 8 Cal.4th 728 [ 35 Cal.Rptr.2d 270 , 883 P.2d 388 ]. “When presented with a petition for writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief—that is, whether it states facts that, if true, entitle the petitioner to relief—and also whether the stated claims are for any reason procedurally barred. [Citation.]”

Our Supreme Court has also explained the nature and function of the order to show cause, which has been authorized for use in lieu of the writ of habeas corpus. (People v. Romero, supra, 8 Cal.4th at p. 738.) “Judicial practice and decisions of this court have authorized one deviation from the procedure specified in the Penal Code.” (Ibid.) “Because ‘appellate courts are not equipped to have prisoners brought before them . . . this court and the Courts of Appeal developed the practice of ordering the custodian to show cause why the relief sought should not be granted.’ ” (Ibid., quoting In re Hochberg (1970) 2 Cal.3d 870 , 874 [ 87 Cal.Rptr. 681 , 471 P.2d 1 ].) Thus, “[w]hen used as a substitute for the writ of habeas corpus, the order to show cause ‘directs the respondent custodian to serve and file a written return.’ ” (People v. Romero, supra, 8 Cal.4th at p. 738.)

Accordingly, the order to show cause has a limited function. As explained in In re Serrano (1995) 10 Cal.4th 447 [ 41 Cal.Rptr.2d 695 , 895 P.2d 936 ], the order to show cause does not “establish a prima facie determination that petitioner is entitled to the relief requested. Rather, it signifies our ‘preliminary determination that the petitioner has made a prima facie statement of specific facts which, if established, entitle [petitioner] to habeas corpus relief under existing law.’ ” (In re Serrano, supra, 10 Cal.4th at p. 455, quoting In re Hochberg, supra, 2 Cal.3d at p. 875, fn. 4.)

The order to show cause also directs the respondent to address the “ ‘claims raised in the petition and the factual bases for those claims alleged in the petition.’ ” (People v. Duvall, supra, 9 Cal.4th at p. 475.) “ ‘It directs the respondent to address only those issues.’ ” (Ibid.) The respondent addresses the issues in a pleading called the return. The return must “ ‘allege facts tending to establish the legality of petitioner’s detention.’ ” (Id. at p. 476.) “The factual allegations . . . must also respond to the allegations of the petition that form the basis of the petitioner’s claim that the confinement is unlawful. [Citations.]” (Ibid.) “In addition to stating facts, the return should also, ‘where appropriate, . . . provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.’ ” (People v. Duvall, supra, 9 Cal.4th at p. 476; see § 1480.)

Thus, it is the parties’ pleadings that define the issues. In the words of our Supreme Court, “it is through the return and the traverse that the issues are joined in a habeas corpus proceeding.” (People v. Romero, supra, 8 Cal.4th at p. 739.) “This process of defining the issues is important because issues not raised in the pleadings need not be addressed. [Citation.]” (People v. Duvall, supra, 9 Cal.4th at p. 478.) Under this process, the issues to be addressed may not extend beyond the claims alleged in the habeas corpus petition. Thus, respondent may not raise additional issues in its return. (People v. Green (1980) 27 Cal.3d 1 , 43, fn. 28 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ], overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826 , 834, fn. 3 [ 226 Cal.Rptr. 112 , 718 P.2d 99 ].)

Similarly, a habeas corpus petitioner may not raise additional issues in the traverse. “While the traverse may allege additional facts in support of the claim on which an order to show cause has issued, attempts to introduce additional claims or wholly different factual bases for those claims in a traverse do not expand the scope of the proceeding which is limited to the claims which the court initially determined stated a prima facie case for relief.” (In re Clark, supra, 5 Cal.4th at p. 781, fn. 16; see also In re Connor (1940) 16 Cal.2d 701 , 711 [ 108 P.2d 10 ].) To bring additional claims before the court, petitioner must obtain leave to file a supplemental petition for writ of habeas corpus. (People v. Green, supra, 27 Cal.3d at p. 43, fn. 28.)

Keeping these procedural requirements in mind, we turn to the question of whether the superior court has the authority to issue an order to show cause that requires the Board to respond to claims not expressly raised by the petitioner in the petition for writ of habeas corpus.

D. May the Superior Court Issue an Order to Show Cause That Requires the Board to Respond to Claims Not Expressly Raised in the Petition for Writ of Habeas Corpus?

Based on our review of habeas corpus procedure, we believe that the law regarding the issues to be determined in a habeas corpus proceeding is well settled. “ ‘[T]he court considers only those grounds of illegality alleged

1. The Scope of the Court’s Power Under Section 1484

In its entirety, section 1484 provides, “The party brought before the Court or Judge, on the return of the writ, may deny or controvert any of the material facts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that his [or her] imprisonment or detention is unlawful, or that he [or she] is entitled to his [or her] discharge. The Court or Judge must thereupon proceed in a summary way to hear such proof as may be produced against imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require, and have full power and authority to require and compel the attendance of witnesses, by process of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and a determination of the case.”

The plain language of section 1484 expressly addresses the scope of the court’s authority after the traverse is filed and the issues are joined. (See, e.g., Durdines v. Superior Court (1999) 76 Cal.App.4th 247 , 252 [ 90 Cal.Rptr.2d 217 ].) Accordingly, once the court has decided that habeas corpus relief is warranted, section 1484 authorizes the court “to fashion a remedy for the deprivation of any fundamental right which is cognizable in habeas corpus.” (In re Crow (1971) 4 Cal.3d 613 , 620, fn. 7 [ 94 Cal.Rptr. 254 , 483 P.2d 1206 ].) Section 1484 does not specifically provide the superior court with the power to ensure that all claims that could be raised regarding the legality of petitioner’s detention have been raised, or to supplement the petition with new claims by way of the order to show cause.

The well-established rule is that “it is the petitioner who bears the ultimate burden of proving the factual allegations that serve as the basis for his or her request for habeas corpus relief.” (In re Serrano, supra, 10 Cal.4th at p. 456.) Because the petitioner has the evidentiary burden, it is the petitioner who must select the claims that the petitioner desires to plead and prove as the grounds for habeas corpus relief. As we have discussed, our Supreme Court

In so ruling, we recognize that the superior court has the authority to invite amended or supplemental habeas corpus petitions in the interests of justice. We also recognize that the superior court in crafting the order to show cause has the power to explain its preliminary assessment of the petitioner’s claims, restate inartfully drafted claims for purposes of clarity, and limit the issues to be addressed in the return to only those issues for which a prima facie showing has been made. Our Supreme Court has emphasized that the goal of “the procedures that govern habeas corpus is to provide a framework in which a court can discover the truth and do justice in [a] timely fashion.” (People v. Duvall, supra, 9 Cal.4th at p. 482.)

By way of guidance, we note that the well-established rules of habeas corpus procedure provide the superior court with the means of ensuring that the pleadings create a framework in which a court can discover the truth and do justice in a timely fashion. For example, where there are “technical irregularities” in the pleadings in a habeas corpus proceeding, a court issuing an order to show cause has the discretion to grant leave to amend. (People v. Duvall, supra, 9 Cal.4th at p. 482.) Similarly, where the superior court determines that the habeas corpus petition has pleading defects and believes that correction of the defects is necessary to ensure a full and fair hearing and a determination of the case, the superior court has the discretion to give notice of the defect and grant leave to amend or supplement the petition. (See, e.g., People v. Handcock (1983) 145 Cal.App.3d Supp. 25 , 32-33 [ 193 Cal.Rptr. 397 ].)

We emphasize that in these cases we have decided a procedural issue, and we express no opinion as to the substantive merits of any of the four habeas corpus proceedings that underlie the Board’s petitions for writ of mandate or the merits of any future requests for leave to file a supplemental or amended habeas corpus petition.

E. May the Superior Court Order the Board to Provide Discovery of the Decision Pages for All Parole Board Suitability Hearings in 2003?

In two of the underlying habeas corpus proceedings, In re Ngo and In re Gaoiran, the superior court included a discovery order in the order to show cause. The discovery orders identically compel the Board to provide defense counsel with the decision pages for all of the several thousand Board parole suitability hearings that were held in 2003, which is the year Ngo and Gaoiran were denied parole. The superior court stated in each order to show cause that this discovery was necessary to allow Ngo and Gaoiran to make a “substantial evidentiary presentation” regarding the claim that the Board’s “parole granting rate of two-percent” violates the mandate of section 3041, subdivision (a), that parole normally should be granted.

The superior court also explained the purpose of the decision-page discovery; “If it appears that in over ninety percent of the cases the Board stated the crime was ‘exceptionally’ or ‘especially’ ‘callous,’ ‘dispassionate,’ ‘calculated,’ or ‘cruel,’ then it would seem that the Board is using the exception to nullify the rule.” The superior court also observed in the order to show cause, “If the evidence appears to suggest a finding that nearly every personfs] crime has been called exceptional, there could be a violation regarding the Board’s application of the governing rules.”

The Board contends that the superior court’s discovery orders are improper because Ngo and Gaoiran both failed to carry their burden to make a prima facie showing for the claimed grounds of illegality, and therefore no discovery jurisdiction exists. Further, the Board argues that the discovery sought is irrelevant and will unduly burden the Board and violate third party inmates’ privacy rights. Ngo and Gaoiran respond that the decision pages of all Board

Our Supreme Court has also observed that “[t]he nature and scope of discovery in habeas corpus proceedings has generally been resolved on a case-by-case basis.” (In re Scott, supra, 29 Cal.4th at p. 813.) We have found no authority that expressly provides the superior court with the power to order discovery in a habeas corpus proceeding in the absence of a discovery request by a party. However, section 1484 provides broad powers that we believe encompass the power to order discovery whether or not a party has made a discovery request. Section 1484 provides that once the order to show cause has been issued and the return has been filed, the court has the “full power and authority to require and compel the attendance of witnesses, by process of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and a determination of the case.”

Under section 1484 and the above California Supreme Court authority governing discovery in habeas corpus proceedings, we determine that the superior court has the power to order discovery when requested by a party, or in the absence of a discovery request by a party, once the order to show cause has issued and discovery jurisdiction has been conferred. On those rare occasions where no party has requested discovery and the superior court believes that discovery is necessary to ensure a full and fair hearing and a determination of the case, the court has the discretion to compel the necessary discovery. In compelling discovery on its own motion, the superior court must keep in mind its duty to “discover the truth and do justice in timely fashion.” (People v. Duvall, supra, 9 Cal.4th at p. 482.)

2. Analysis of the Superior Court’s Discovery Orders

In the present cases, the superior court included discovery orders in the orders to show cause even though no discovery request by a party was pending. We find no procedural error in the trial court’s inclusion of a discovery order in the orders to show cause, because discovery jurisdiction is conferred when the order to show cause issues in a habeas corpus matter. However, because we have previously determined that the orders to show cause in which these discovery orders are incorporated must be vacated on another ground, we will also vacate the discovery orders. Therefore, we do not reach the issue of whether the superior court abused its discretion in ordering the Board to produce the decision pages for all 2003 Board parole suitability hearings.

In People v. Superior Court (Lewis), H028070: Let a peremptory writ of mandate issue commanding the superior court to vacate its order to show cause, and to reconsider its rulings in accordance with the views expressed in this opinion. The temporary stay order is vacated.

In People v. Superior Court (Bettencourt), H028022: Let a peremptory writ of mandate issue commanding the superior court to vacate its order to show cause, and to reconsider its rulings in accordance with the views expressed in this opinion. The temporary stay order is vacated.

Mihara, I., and McAdams, J., concurred.