Opinion
B297363
09-22-2020
In re KALVIN LAMONT HARRIS on Habeas Corpus.
Susan L. Jordan, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Julie A. Malone and Jennifer L. Heinisch, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. BH011101, A376658) ORIGINAL PROCEEDING; petition for writ of habeas corpus, William C. Ryan, Judge. Petition granted. Susan L. Jordan, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Julie A. Malone and Jennifer L. Heinisch, Deputy Attorneys General, for Respondent.
____________________
OPINION REDACTED TO EXCLUDE CONFIDENTIAL INFORMATION.
(Cal. Code Regs. , tit. 15, § 3321, subd. (a); see People v. Landry (2016) 2 Cal.5th 52 , 73.)
In 1984, we affirmed petitioner Kalvin Lamont Harris's judgment of conviction for first degree murder and two counts of robbery. Harris is currently incarcerated at the Correctional Training Facility in Soledad, California. In 2014, the Board of Parole Hearings (Board) granted Harris a release date. In 2016, the Board, meeting en banc, referred Harris to a rescission hearing based on evidence that the granting panel did not consider. Thereafter, a three-member panel of the Board found that Harris posed an unreasonable risk of danger and rescinded the prior grant of parole. Harris's current petition for writ of habeas corpus challenges the Board's 2016 rescission of his parole date.
We conclude some evidence supported the Board's determination that there was good cause to rescind Harris's grant of parole. We, however, also conclude that the Board erred in refusing Harris's request to call character witnesses, and that this error was not harmless beyond a reasonable doubt. Accordingly, we grant the habeas petition, vacate the rescission order, and order the Board to conduct a new rescission hearing within 30 days of finality of this decision. (In re Johnson (1995) 35 Cal.App.4th 160, 170-171.)
At the outset, it is important to note the constraints the confidential nature of much of the evidence involved in Harris's parole rescission proceedings imposes on our review and on Harris in challenging the rescission of parole in the petition before us. We cannot fail to acknowledge the tension between the right to classify information as confidential, which if known to the inmate, could endanger the safety of a person or the security of the institution (Cal. Code Regs., tit. 15, § 3321, subd. (a)), and the resulting inability of an inmate to challenge that information as inaccurate or unreliable. As our high court has observed: "Unless the prisoner learns what information is in the [Board's] possession he cannot intelligently decide what subjects to discuss" or adequately challenge inaccurate information. (In re Prewitt (1972) 8 Cal.3d 470, 476.)
At the same time, our high court and appellate courts have recognized the state's legitimate interest in maintaining certain prison inmate records confidential to " '(1) protect individuals, including informants inside and outside of prison, (2) ensure institutional security, and (3) encourage candor and complete disclosure of information concerning inmates from both public officials and private citizens.' " (People v. Landry (2016) 2 Cal.5th 52, 73; Ochoa v. Superior Court (2011) 199 Cal.App.4th 1274, 1280.) Mindful of these interests, we have redacted information classified as confidential from our opinion in the public file and have sealed our unredacted opinion to enable further review.
BACKGROUND
1. Conviction
In 1983, Harris was convicted of first degree murder and two counts of robbery. The trial court sentenced Harris to an indeterminate term of 25 years to life for the murder plus an additional consecutive two-year term for a firearm enhancement. The trial court also sentenced Harris to a concurrent seven-year determinate sentence.
Former Governor Edmund G. Brown, Jr.'s description of Harris's crime is undisputed: "On February 27, 1982, Kalvin Harris, Michael Jackson, Anthony Debose, and Delano Whitlock were driving to Los Angeles after casing a jewelry store in Torrance. All four men were carrying revolvers. They saw Javier Razo driving a car with chrome rims. Mr. Harris suggested the group steal Mr. Razo's car for the rims. The driver rear-ended Mr. Razo to get him to stop under the pretext of a traffic accident. Mr. Razo, his wife, and their infant daughter got out of their car to assess the damage, while Mr. Harris, Mr. Whitlock, and Mr. Debose got out of their car. One of the men shot Mr. Razo once in the chest with a .22 caliber revolver, killing him. The victims were left on the street while Mr. Harris and his crime partners drove off in both cars. Mr. Jackson, Mr. Debose, and Mr. Whitlock identified Mr. Harris as the shooter."
Harris was 18 years old at the time he committed the offense. 2. The Board Found Harris Suitable For Parole , and the Governor Reversed the Board's Decision
The Board found Harris suitable for parole in June 2014.
In October 2014, then Governor Edmund Brown reversed the Board's decision. Governor Brown explained: "I am concerned about confidential information appearing in Mr. Harris's file, including a report that was written after Mr. Harris's 2014 parole hearing and therefore was not reviewed by the Board prior to its finding of suitability. I ask the Board to carefully examine Mr. Harris's entire confidential file prior to his next suitability hearing, especially the most recent memorandum, and to conduct an investigation into its veracity if necessary. Based on this information, however, I am not prepared to release him at this time."
Governor Brown concluded: "I have considered the evidence in the record that is relevant to whether Mr. Harris is currently dangerous. When considered as a whole, I find the evidence shows that he currently poses an unreasonable danger to society if released from prison. Therefore, I reverse the decision to parole Mr. Harris."
3. The Trial Court Found the Governor's Decision Was Not Supported By Some Evidence
Following the Governor's reversal of the Board's decision to grant Harris parole, Harris filed a petition for writ of habeas corpus in the superior court. On March 4, 2016, the trial court concluded that the "record does not contain 'some evidence' to support the determination that the Petitioner currently presents an unreasonable risk of danger to society and is, therefore, not suitable for release on parole."
The trial court reversed the Governor's decision denying Harris parole and reinstated the Board's decision. The trial court directed the Board " 'to proceed in accordance with its usual procedures for release of an inmate on parole unless within 30 days of the finality of this decision the Board determines in good faith that cause for rescission of parole may exist and initiates appropriate proceedings to determine that question.' " 4. Following a Hearing , the Board Rescinded Harris's Parole
An en banc panel of the Board voted to refer Harris to a rescission hearing.
In November 2016, a panel of three Board members (the Panel) held a hearing to determine whether to rescind Harris's parole. In the public portion of the proceedings, which commenced November 4, 2016 at 8:38 a.m., the Panel explained that "a Rescission Panel must determine whether the concerns of the full Board when considered together with the evidence before the Granting Panel as well as any new information leads to the conclusion that the inmate would pose an unreasonable risk of danger." (Italics added.)
Title 15 of the California Code of Regulations, section 2467 provides that a rescission hearing for life prisoners shall be conducted by a three-member panel. (Cal. Code Regs., tit. 15, § 2467, subd. (b).)
The Panel indicated that it would consider "whether new confidential information dated August 1st, 2014; September 25th, 2014; September 10th, 2015, and September 18th, 2015, demonstrate that you, Mr. Harris, poses an unreasonable risk of danger to the public . . . ." At the hearing, counsel for Harris stated, "[W]e were properly notified of all of the confidential information currently in Mr. Harris'[s] Central File and what is the subject of this hearing." It appears that Harris and his counsel were notified of the existence of the confidential memoranda but not the contents of those memoranda.
Harris testified during the nonconfidential portion of the rescission hearing. Harris stated that he believed the allegations against him concerned "possible radicalization activities," and he believed the allegations were "false." Harris acknowledged that he published two books without seeking "clearance" through proper channels. Harris indicated "[I do not] consider myself a radical. . . . I speak out against violence. Since I've been a Muslim, since 1994, I have never, ever advocated any violence against anybody." Harris further stated, "I have developed into a principle[d] man. So therefore, I don't have . . . anything against nobody's government, whatsoever. If the government does something good, I support it. If it does something bad, I do not support it. So I can never be anti-American. I can never be anti-Russia. I can never be anti-anybody's government because my principle[ ] is enjoining the good and forbidding the wrong." Harris explained: "I don't believe in no violence. I don't want to hurt nobody. I want to build something. I believe in building, not destroying."
Harris testified that he wrote the books "to guide the Muslims into the ways of peace and a peaceful Islam . . . ." Harris also testified that if law enforcement approached him he would "help them . . . in any way" he could.
Lieutenant Victor Kahn testified that he worked for the investigative services unit and had special training in gang investigations. He stated he reviewed a confidential report about Mr. Harris. Kahn further testified the confidential report was related to possible radicalized activities.
Officer Sylvia Patterson, who worked with the investigative services unit, testified she signed a receipt indicating that items were taken on June 22, 2015 from a search of Harris's cell. She testified that she sometimes investigates whether an inmate may be involved in radicalized activities. During Harris's counsel's cross-examination of Patterson, the Panel repeatedly reminded Patterson that she could not reveal any information from the confidential memoranda.
At the conclusion of the hearing, the Panel found good cause to rescind Harris's parole. The Panel cited its review of the record and new confidential information. The Panel did not identify the specific portions of the record constituting good cause.
In addition to the above-summarized proceedings, the Panel conducted a confidential hearing. The confidential hearing began at 9:38 a.m. on November 4, 2016.
5. Petition for Writ of Habeas Corpus
On May 8, 2017, the superior court denied Harris's petition for writ of habeas corpus challenging the Board's 2016 decision to rescind his parole. The trial court reviewed the confidential memoranda and concluded " 'some evidence' " supported the Board's 2016 determination that Harris continued to present an unreasonable risk of danger to society.
Finding good cause, on our own motion, we take judicial notice of the trial court's order denying Harris's petition for writ of habeas corpus.
On April 17, 2018, Harris filed a petition for writ of habeas corpus in this court. In his petition for writ of habeas corpus, Harris stated that he is challenging the rescission of his parole by the Board of Parole Hearings. Harris believed that the confidential information in his file belonged to "someone else[ ]." He also (incorrectly) believed the confidential information included a picture of Osama Bin Ladin. On June 22, 2015, officers removed several items from Harris's cell, which Harris describes as "his religious materials, some Afro-centric materials . . . ." Harris believes that his cell was searched "for the sole purpose of building a case against Petitioner, which did not exist at the time the Board found him suitable for parole or when the Governor reviewed his case . . . ." (Underscoring omitted.)
On February 8, 2018, this court initially denied Harris's petition because Harris had a subsequent suitability hearing scheduled for February 16, 2018. We indicated that Harris could file a new petition in superior court upon the completion of the subsequent suitability hearing. Citing In re Powell (1988) 45 Cal.3d 894 (Powell), our Supreme Court returned Harris's petition to us to consider "why relief should not be granted because there was insufficient evidence to support the November 4, 2016 decision by the Board of Parole Hearings to rescind petitioner's parole grant."
We begin with that question and conclude that sufficient evidence supported the Board's decision. We briefly address the remainder of Harris's arguments. We conclude that Harris has demonstrated the Board erred in not permitting him to call character witnesses at the rescission hearing and that the Board's error was not harmless beyond a reasonable doubt.
DISCUSSION
The Legislature has granted the Board authority to determine parole dates for an inmate serving an indeterminate term. (In re Prather (2010) 50 Cal.4th 238, 249.) The Board may rescind a grant of parole for good cause. (Cal. Code Regs., tit. 15, § 2450 [parole may be rescinded for good cause at a rescission hearing]; Powell, supra, 45 Cal.3d at p. 901.) Penal Code section 3063 applies to parole rescission and provides: "No parole shall be suspended or revoked without cause, which cause must be stated in the order suspending or revoking the parole." (Pen. Code, § 3063; In re Fain (1983) 139 Cal.App.3d 295, 302.) Cause may exist if the Board determines "that parole was 'improvidently granted' under the circumstances that appeared at the time of the grant, or that may have appeared since." (Powell, at p. 902.) As noted above, the Board found good cause to rescind Harris's parole based on its conclusion that the evidence supported the finding that Harris would pose an unreasonable risk of danger.
A. Standard of Review
We review the Board's decision to rescind parole to determine whether " 'some evidence' supports the determination that a prisoner remains currently dangerous.' " (In re Ilasa (2016) 3 Cal.App.5th 489, 506; Powell, supra, 45 Cal.3d at p. 904.) "The 'some evidence' standard is intended to guard against arbitrary parole decisions, without encroaching on the broad authority granted to the Board and the Governor." (In re Shaputis (2011) 53 Cal.4th 192, 215.) Under the "some evidence" standard, "[t]he scope of judicial review is limited." (Id. at p. 199.) "The 'some evidence' standard does not permit a reviewing court to reject the Board's reasonable evaluation of the evidence and impose its own judgment." (Ibid.) "Resolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board." (In re Rosenkrantz, supra, 29 Cal.4th at p. 656.)
Harris incorrectly argues that under the some evidence standard, this court may consider only the evidence relied on by the Board and not "whether there is evidence in the record supporting what the court believes are valid reasons for the parole denial." (Boldface omitted.) Our high court has rejected this contention: "Any relevant evidence that supports the parole authority's determination is sufficient to satisfy the 'some evidence' standard." (In re Shaputis, supra, 53 Cal.4th at p. 214.) In any event, the evidence the Board relied on here provides "some evidence" to support the Board's decision.
B. Some Evidence Supported the Board's Decision to Rescind Harris's Parole
As previously noted, in its order to show cause why relief should not be granted for insufficient evidence to support the November 4, 2016 decision by the Board to rescind Harris's parole, our Supreme Court cited Powell, supra, 45 Cal.3d at p. 902. In Powell, the Supreme Court considered the rescission of an inmate's parole. (Id. at p. 901.) The inmate, Powell, had been convicted of first degree murder. (Id. at p. 897.) Initially, the trial court sentenced him to death; later he was retried and sentenced to an indeterminate life term. (Ibid.) At the time of the murder, Powell was on parole and admitted to having committed 35 to 40 robberies. (Id. at pp. 898-899, fn. 3.) Although Powell initially had multiple disciplinary infractions while incarcerated, he eventually "ceased being a problem inmate." (Id. at p. 898.) "His psychiatric reports stated he had improved substantially and was continuing to improve." (Ibid.)
After the Board granted Powell a release date, he was transferred to a different prison and evaluated there. (Powell, supra, 45 Cal.3d at p. 898.) The author of that evaluation "expressed doubt about [Powell's] suitability for parole. The report stated that although [Powell's] antisocial personality was 'seemingly' improved, his behavior and potential for violence could be unpredictable in stressful situations." (Id. at pp. 898-899.) Another evaluator reached the opposite conclusion, opining that Powell "was likely to hold his psychiatric gains after release into the community." (Id. at p. 899.) Additional experts opined that Powell's "improvements, made in an institutional setting, might well be superficial and 'not likely to hold once he is released from confinement.' " (Id. at p. 900.) Another psychiatrist concluded that Powell's "violence potential had decreased over time" and that Powell had "an improved ability to make rational decisions." (Ibid.)
Our high court explained: "Cause for rescission may exist if the [Board] reasonably determines, in its discretion, that parole was 'improvidently granted' under the circumstances that appeared at the time of the grant, or that may have appeared since." (Powell, supra, 45 Cal.3d at p. 902.) "[I]t is the province of the board to resolve conflicting evidence in hearings before it." (Ibid.) The court held that "[w]hile the board cannot rescind a parole date arbitrarily or capriciously, it does not abuse its discretion when it has some basis in fact for its decision." (Id. at p. 904.) Applying the some evidence standard of review, the high court held that the board's decision was supported by some evidence even though the record contained conflicting evidence. (Id. at p. 906.)
Just as in Powell, here some evidence supported the Panel's decision to rescind Harris's parole date. Confidential memoranda supported the conclusion that Harris developed radicalized ideologies while incarcerated and it is undisputed that the Board did not consider those memoranda in 2014 when it initially granted Harris parole. Harris does not dispute the conclusion that a person believing radical Islamic ideology presents a risk; instead he argues that he does not believe in that ideology. The Panel must have given more weight to the information in the confidential memoranda than to Harris's testimony eschewing radicalization, and this court does not reweigh the Panel's credibility determinations. (In re Rosenkrantz, supra, 29 Cal.4th at p. 665.) As in Powell, here the Panel's decision was supported by some evidence even though the record contained Harris's conflicting evidence. (Powell, supra, 45 Cal.3d at p. 902.)
On March 27, 2020, we issued an order to show cause directing respondent to identify the other grounds for rescinding Harris's parole. Because we conclude some evidence supported the Board's finding that Harris posed a current risk of dangerousness—the ground it did disclose—we do not consider whether some evidence supported the other grounds. We therefore deny Harris's motion to reject respondent's submission to the order to show cause, as well as Harris's request to file supplemental briefing.
C. This Court's Review Is Not Limited to Determining Whether There Was New Evidence in Harris's File
The Attorney General argues: "If the panel determines the grant [of parole] was not appropriate and rescinds the parole grant, that determination satisfies due process if there is 'some evidence' in the record to support the finding that parole was improvidently granted because some piece of information—like the August 1, 2014 confidential memorandum here—was not available or was not adequately considered." The Attorney General further contends it is "[t]he existence of that relevant information—not its specific content but its existence—[that] is the justification for rescinding the panel's determination." We disagree because the Attorney General's arguments are not consistent with case law and misperceive the procedural posture of the proceedings before the Panel at issue here.
"California parole rescission proceedings take place in two phases. In the first phase, the panel determines only whether there is 'good cause' to rescind the grant of parole. [Citation.] If good cause is found, the panel moves to the second phase to determine whether, given that finding, the parole date should in fact be rescinded because an independent evaluation of the prisoner's suitability for parole so dictates." (McQuillion v. Duncan (9th Cir. 2002) 306 F.3d 895, 899.) The second inquiry requires a more formal hearing with procedural protections. (In re Prewitt, supra, 8 Cal.3d at p. 473, fn. 5.)
Here, this court is not called upon to review the en banc Board's decision to refer Harris to a rescission hearing. Instead, this court is reviewing the Panel's 2016 decision to rescind Harris's parole, a decision that followed a formal hearing in which the Panel concluded that the parole date should, in fact, be rescinded. The Panel explained that "a Rescission Panel must determine whether the concerns of the full Board when considered together with the evidence before the Granting Panel as well as any new information leads to the conclusion that the inmate would pose an unreasonable risk of danger." The Panel indicated that it would consider "whether new confidential information dated August 1st, 2014; September 25th, 2014; September 10th, 2015; and September 18th, 2015, demonstrate that you, Mr. Harris, poses an unreasonable risk of danger to the public . . . ." Ultimately, the Panel answered that question affirmatively and rescinded Harris's parole based on its finding that he posed an unreasonable risk of danger.
Our Supreme Court required this court to review the Panel's decision in light of Powell, supra, 45 Cal.3d 894, 904, case law that renders the Attorney General's arguments untenable. In Powell, different evaluators reached different conclusions as to Powell's potential for violence if released from prison. (Id. at pp. 898-900.) In rescinding parole, the Board relied on a report raising doubt about Powell's potential for violence if released from incarceration. (Id. at p. 901.)
The Powell court explained that rescission "can be based on '[a]ny new information which indicates that parole should not occur. Examples include: an inability to meet a special condition of parole, such as failure of another state to approve an interstate parole; information significant to the original grant of parole was fraudulently withheld from the board; or fundamental errors occurred resulting in the improvident granting of a parole date.' " (Powell, supra, 45 Cal.3d at p. 902.) In making the determination whether to rescind parole, the board's "decision must have a factual basis, and may not be based on 'whim, caprice, or rumor.' " (Ibid.) "[I]t is the province of the board to resolve conflicting evidence in hearings before it." (Ibid.)
In Powell, the high court did not simply determine whether there was information in the file not considered by the granting panel. Instead, the high court considered whether additional information that the granting panel did not have provided some evidence to support the conclusion that the petitioner may become violent if released. (Powell, supra, 45 Cal.3d at p. 905.) Our high court looked to the contents of the report describing the petitioner's potential violence, not merely to the existence of an additional report divorced from its content. (Id. at p. 906.)
In re Caswell (2001) 92 Cal.App.4th 1017 (Caswell) further supports the conclusion that our review is not limited to determining whether Harris's file contained information not before the panel that initially granted him parole. In Caswell, the Board granted the petitioner parole and later rescinded his unexecuted grant of parole. (Id. at p. 1022.) The appellate court explained: "Even after parole is granted, the Board is authorized to rescind the grant of parole, if unexecuted, for good cause after a rescission hearing." (Id. at p. 1026.) The Caswell court further counseled that the Board may not simply "mouth[ ] words that have been held to constitute 'cause' for rescission. There must also be an adequate 'factual underpinning for the Board's determination of cause.' " (Id. at p. 1027.)
Here the factual underpinning required by Caswell included new information concerning whether Harris posed an unreasonable risk of danger. The Panel recognized that it was tasked with determining whether the record before it, including that new information would support a finding that Harris posed a risk of danger. In short, the Attorney General's argument that our review is limited to determining whether new information existed in Harris's file does not comport with the case law or the procedural posture of the rescission proceedings at issue here.
D. Harris's Argument that The Board Could Rely Only on New Evidence Lacks Merit
Harris argues that when the Panel rescinded his parole, the Panel did not rely on new information postdating his June 6, 2014 grant of parole. Harris's view that the Panel could consider only new evidence appears to be based on a misreading of In re Lira (2014) 58 Cal.4th 573, 582. The issue before the high court in Lira was whether the petitioner was entitled to credit against his parole term for the time-period commencing on the governor's ultimately erroneous reversal of the Board's decision to grant petitioner parole and ending when the petitioner was released on parole. In holding that petitioner was not entitled to credit for this time-period, the Lira court observed "when a court determines that a gubernatorial reversal of a parole decision is unsupported, the remedy is not an order for the inmate's immediate release; rather, the court vacates the Governor's reversal, reinstates the Board's grant of parole, and directs the Board to conduct its usual proceedings for a release on parole. This allows the Board to account for any recent developments reflecting on the inmate's suitability for parole, and to rescind its grant if appropriate." (Ibid.) "There is, thus, little room for Lira to argue that the Governor's reversal, later judicially determined to be unsupported, somehow retroactively rendered unlawful the period of his continued incarceration during the pendency of these processes." (Ibid.)
"[N]ew information which indicates that parole should not occur" is only one type of evidence that prison staff may provide the Board to initiate rescission proceedings. (Cal. Code Regs., tit. 15, § 2451, subd. (d).) The Board may also consider "[f]undamental errors occurred resulting in the improvident granting of a parole date." (Cal. Code Regs., tit. 15, § 2451, subd. (c).) Cause includes "a determination by the Board that parole was improvidently granted under the circumstances appearing at the time of the grant of parole or at a later time." (Caswell, supra, 92 Cal.App.4th at p. 1026.) In short, the Panel's evaluation was not confined to evidence new since Harris's 2014 rescission hearing. Harris's argument to the contrary is not well-founded.
California Code of Regulations, title 15, section 2451, subdivision (d) provides:
"Department staff shall report to the Board at the central office calendar conduct which may result in rescission proceedings. The Board shall determine whether to initiate rescission proceedings. Examples of conduct which must be reported to the Board include:
"(a) Disciplinary Conduct.
"(1) Assault with a weapon.
"(2) Escape.
"(3) Physically assaultive behavior.
"(4) Possession of a weapon without permission.
"(5) Possession of controlled substances without a prescription.
"(6) Attempt to escape.
"(7) Urging others, with the intent to cause a riot, to commit acts of force or violence, at a time and place and under circumstances which produce a clear and present and immediate danger of a riot which results in acts of force or violence.
"(8) Intentional destruction of state property valued in excess of $50.
"(9) Falsification of a significant record or document.
"(10) Possession of escape tools without permission.
"(11) Manufacture or sale of intoxicants.
"(12) Threatening the Board or Board staff.
"(13) Other conduct which seriously disrupts institutional routine, or which strongly indicates that the prisoner is not ready for release, or which indicates that the prisoner is a danger to himself or others, or which Department staff believes should be reported to the Board.
E. Harris Fails to Show Any Error In the Panel's Refusal to Allow Counsel to Cross-Examine a Witness Concerning a Confidential Memorandum
At the public hearing, the Panel instructed Patterson not to answer Harris's counsel's questions that would implicate confidential information. Harris argues he was deprived of his right to due process because his counsel was not permitted to cross-examine witness Patterson about "the August 1, 2014 confidential memorandum that she authored regarding his alleged radicalization activities . . . ." (Boldface & capitalization omitted.)
Although the Panel's ruling constrained counsel's questioning, Harris fails to demonstrate error. He cites no authority supporting his claim that he should have been permitted to cross-examine a witness regarding confidential memoranda.
Harris cites In re Miller (2006) 145 Cal.App.4th 1228 but to no avail. In Miller, the court held that the Board erred in allowing a detective to recount the alleged victim's conversation when the victim's identity was not confidential and thus the victim could have been subpoenaed. (Id. at p. 1231.) More specifically, in Miller, the petitioner was charged with parole violations, including forced oral copulation and sexual battery. (Ibid.) The victim of the alleged violations, who apparently had requested confidentiality, was not subpoenaed for the hearing and did not testify. (Id. at p. 1231; see id. at p. 1234.) Instead, a detective testified about his conversation with the victim. (Id. at pp. 1232-1233.) The appellate court concluded that the alleged victim was not a confidential witness primarily because the petitioner was aware of the victim's name and therefore confidentiality was not a proper basis for admitting the detective's hearsay testimony. (Id. at p. 1236.) Here, no one contends Patterson's identity was confidential. Harris obviously knew Patterson's name, and she testified—albeit briefly—at Harris's public rescission hearing. Miller thus does not support Harris's argument that the Board should have allowed Patterson to testify regarding the confidential memorandum.
F. The Panel Should Have Allowed Harris to Call Character Witnesses
Harris argues that the Panel improperly refused his attorney's request to allow him to call character witnesses at the rescission hearing. When we announced our tentative ruling at oral argument, which included our view that the failure to allow Harris to call his character witnesses was not harmless error, the Attorney General initially objected to our consideration of the issue as beyond the scope of our Supreme Court's order to show cause. The Attorney General then requested postargument supplemental briefing because he contended his briefing in response to the order to show cause did not address the issue, a request we granted. The parties filed supplemental briefs to address whether the Panel should have permitted Harris to call Imam Tariq Aquil and Correctional Officer Bann. In their supplemental briefs, the parties also discussed whether an error in preventing Harris from calling these witnesses was harmless.
We do not agree with the Attorney General that Harris forfeited review of the issue. Harris expressly requested that Correctional Officer Bann and Imam Tariq Aquil be allowed to testify on Harris's behalf. The Panel denied the request. A senior staff attorney for the California Board of Parole Hearings wrote that "[o]nly percipient witnesses are permitted at rescission hearings. Character witnesses will not be called to testify." On this ground, the staff attorney refused to allow Harris to call Imam Tariq Aquil and Correctional Officer Bann. The record thus demonstrates that Harris's request to allow Officer Bann and Imam Aquil to testify was sufficiently preserved for our review.
Bann's first name is not identified.
As Harris correctly argues, character witnesses may testify at a rescission hearing. (Cal. Code Regs., tit. 15, § 2668; Powell, supra, 45 Cal.3d at p. 905; In re Johnson, supra, 35 Cal.App.4th at pp. 170-171.) "The prisoner shall have the right to request the presence of evidentiary witnesses at a rescission hearing. The witnesses shall be called unless the hearing panel has specific reason to deny the request." (Cal. Code Regs., tit. 15 § 2465, subd. (c).) In Johnson, the petitioner sought to call 35 witnesses including character witnesses. (Johnson, at p. 170.) The appellate court held that the Board erred in denying his request and then considered whether the error was harmless beyond a reasonable doubt. (Id. at pp. 171-172.)
Title 15, section 2668 of the California Code of Regulations permits a prisoner to request "either evidentiary or dispositional witnesses." (Cal. Code Regs., tit. 15, § 2668, subd. (a)(1).) Subdivision (b) provides: "Coordinator staff shall review the list of requested witnesses prior to the hearing and may refuse to notify or call witnesses. Coordinator staff shall document the reason for any refusal to notify or call a witness, and the parolee, prisoner, or attorney shall be told of the refusal prior to the hearing." (Id., subd. (b).) The regulation further provides, "Staff shall determine the testimony of an evidentiary witness is clearly irrelevant before refusing to call the witness. (Examples of irrelevant witnesses include a public official having no knowledge of the violation or witness with no knowledge or evidence in mitigation.)" (Id., subd. (b)(1).)
The Panel thus erred in refusing to allow Harris to present character witnesses. We conclude that this error was not harmless beyond a reasonable doubt.
It is not speculative or unreasonable to conclude that the character witnesses Harris proffered—Imam Tariq Aquil and Correctional Officer Bann—could have caused the Panel to give greater weight to Harris's credibility in evaluating it against the new information in the confidential memoranda. Harris represented that Imam Aquil would have testified that "Mr. Harris is not tied to any religious terrorist organization, to a Security Threat Group . . . , or to organizations promoting jihadism or 'Islamic terrorism.' " According to Harris's proffer, Aquil would have testified that Harris's "religion espouses peace and non-violence and is entirely antithetical to the philosophies and practices of Al-Qaeda, the Taliban, ISIS, Boko Haram, or any other extremist Islamic group." Additionally, Harris contends Aquil would have testified, "Mr. Harris is genuinely and sincerely committed to his faith, and he practices his faith for the sole purpose of furthering his relationship to God and not as a means of promoting radicalism, violence, or any of the ideologies of violent extremists." (Boldface & underscoring omitted.)
Harris advances that Correctional Officer Bann would have testified regarding Harris's character and conduct while incarcerated. In January 2017 after the November 2016 rescission hearing, Officer Bann provided a declaration stating that he has known Harris for 25 years. "As a Senior Correctional Officer with over 30 years in the California Department of Corrections and Rehabilitation, I have come in contact with a countless number of inmates of varying degrees of dangerousness and of security needs. During this time, I have dealt with riots, staff assaults, knife assaults, murders and drugs in the prison setting on a routine basis. I have assisted in the apprehension of more inmates engaging in drug and contraband activities than any officer in the history of this prison. Based on this, I have a solid grasp, as well as invaluable experience, into the mindset, criminality, dangerousness, and characteristics of those within my charge."
Bann continued: "In my various duties as a Correctional Officer, I have observed Mr. Harris on the recreation yard, housing unit, and supervised him at his job assignment. Mr. Harris is and has been well regarded by both staff and other inmates in his conduct and positive programming throughout his incarceration period. Through the course of his incarceration, he has readily attempted to improve and rehabilitate himself and assisted others through any means available. I must disagree with some CDCR Officials that have made comments regarding Mr. Harris'[s] religion and possible radicalization activities. There is nothing in the over 25 years of observations that support their conclusions."
In observing Harris, "I find a sincere and positive individual who is adamant in his programming and rehabilitative efforts. He is absent the criminality so common in this setting and his dangerousness, in comparison to other inmates, is observably low to nonexistent."
We conclude that because Harris's credibility was at issue and the character witnesses could have bolstered it, exclusion of the witnesses was not harmless beyond a reasonable doubt. This is all the more apparent given Harris's lack of access to the confidential information in his file and inability to challenge it directly. Although the Panel could have rejected the Imam's or the correctional officer's testimony, the Panel, not this court, must assess the import of the witnesses' testimony and its effect, if any, on assessing Harris's credibility.
The Attorney General argues that prohibiting Harris from calling character witnesses was harmless because "even the most favorable testimony would not negate the presence of information that should have been considered and was not." As set forth in Section C, ante, this argument is based on an incorrect view of the procedural posture of the proceedings, to wit, that the Panel considered only whether there was information in Harris's file not evaluated by the granting panel. As we have explained, the Panel, in fact, determined whether new confidential information demonstrated that Harris "poses an unreasonable risk of danger to the public . . . ." Harris's proposed character witnesses were relevant to that determination, and as also explained above, the failure to permit Harris to call them was not harmless beyond a reasonable doubt.
Finally, Harris argues that at the conclusion of his November 4, 2016 hearing, the Panel failed to articulate sufficient good cause to rescind his parole. In a related argument, Harris contends the Panel failed to articulate how the evidence upon which it relied supported the conclusion that Harris was currently dangerous at the time of the rescission hearing. Harris further argues that the Panel failed to determine that the confidential evidence was reliable. Following Harris's new rescission hearing, the Board shall make the required findings.
California Code of Regulations, title 15, section 2235 provides:
"No decision shall be based upon information that is not available to the prisoner unless the information has been designated confidential under the rules of the department and is necessary to the decision.
"(a) Reliability. The reliability of confidential information to be used shall be established to the satisfaction of the hearing panel. A finding of reliability shall be documented by the hearing panel. A hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential.
"(b) Documentation. If confidential information affected a decision the prisoner shall be notified of reports on which the panel relied."
California Code of Regulations, title 15, section 3321, subdivision (b)(1) provides: "No decision shall be based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker(s) that the information is true."
The Board articulated these findings in a 2018 hearing based on much of the same documentation. --------
DISPOSITION
Harris's petition for writ of habeas corpus is granted. The Board's rescission order is vacated. The Board is ordered to conduct a new rescission hearing within 30 days of finality of this decision. (In re Johnson, supra, 35 Cal.App.4th at pp. 170-171.) The order to show cause dated May 1, 2019 is discharged. The order to show cause dated March 27, 2020 is discharged.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.
"(b) Psychiatric Deterioration. Any prisoner whose mental state deteriorates to the point that there is a substantial likelihood that the prisoner would pose a danger to himself or others when released, and who is within 90 days of release, shall be reported to the Board.
"(c) Fundamental errors occurred, resulting in the improvident granting of a parole date.
"(d) Other. Any new information which indicates that parole should not occur. Examples include: an inability to meet a special condition of parole, such as failure of another state to approve an interstate parole; or information significant to the original grant of parole was fraudulently withheld from the Board."