Opinion
A154517
07-23-2018
In re DARRYL POOLE, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 96274)
Petitioner Darryl Poole, serving a prison term of 20 years to life for a second degree murder committed in 1988, filed a petition for writ of habeas corpus after being denied parole in 2017. In addition to challenging the Board's decision finding him unsuitable for release, he argued that the Board's application of Marsy's Law, enacted subsequent to his offense, imposed ex post facto punishment, and that the Board's appointment procedures and compensation limits for attorneys appointed to represent inmates at parole hearings deprive him and other inmates of effective assistance of counsel. After issuing an order to show cause, considering the parties' supplemental petition, return and traverse, and holding oral argument, we bifurcated the first issue from the other two and, in case No. A152341, vacated the Board's decision as unsupported by "some evidence" of current dangerousness. We conclude that resolution of the remaining two issues requires further development of the relevant facts. Accordingly, we will direct the trial court to conduct an evidentiary hearing on these two issues.
DISCUSSION
The factual and procedural background is discussed in our opinion in case No. A152341 and need not be recited here.
I.
The ex post facto clauses of the federal and state Constitutions protect against retroactive alteration of the definition of crimes or increase in punishment for criminal acts. (In re Vicks (2013) 56 Cal.4th 274, 287 (Vicks); U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) A change in laws governing parole may violate the ex post facto prohibition if it " 'creates a significant risk of prolonging [the inmate's] incarceration.' " (Vicks, at p. 299, quoting Garner v. Jones (2000) 529 U.S. 244, 251.)
Under the law in effect at the time petitioner committed the murder for which he is incarcerated, after his initial parole hearing, he was entitled to annual parole hearings unless the Board found it was not reasonable to expect he would be granted parole within a year, in which case the hearing could be deferred for up to two years. (Pen. Code, § 3041.5, subd. (b)(2), as amended by Stats. 1986, ch. 248, § 166; Vicks, supra, 56 Cal.4th at pp. 283-284.) In 2008, California voters approved Proposition 9, called Marsy's Law, which, among other things, amended section 3041.5 to "increase the time between parole hearings, absent a finding by the Board that an earlier hearing is appropriate." (Vicks, at p. 283.) Under Marsy's Law, the minimum deferral period is three years. (Vicks, at p. 284; § 3041.5, subd. (b)(3).)
The hearing could be deferred up to three years for an inmate convicted of more than one offense involving the taking of a life if the Board found it was not reasonable to expect parole would be granted during the following years. (§ 3041.5, subd. (b)(2), as amended by Stats. 1986, ch. 248, § 166; Vicks, supra, 56 Cal.4th at pp. 283.)
Further statutory references will be to the Penal Code unless otherwise specified.
Section 3041.5, subdivision (b)(3), requires the deferral period to be set at 15 years unless the Board finds by clear and convincing evidence that victim and public safety do not require more than 10 years further incarceration; at 10 years absent a finding by the same standard that more than seven years is not required; or, if the Board finds that more than seven years is not required, at seven, five or a minimum of three years. (Vicks, supra, 56 Cal.4th at p. 284; § 3041.5, subd. (b)(3).)
The California Supreme Court rejected a facial ex post facto challenge to Marsy's Law in Vicks because, although the law increased the minimum deferral period, it also provided two mechanisms by which the deferral periods could be shortened. (Vicks, supra, 56 Cal.4th at pp. 301.) First, the Board has "discretion to advance the date of the next parole suitability hearing 'when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner provided' by the statutory deferral periods. (§ 3041.5, subd. (b)(4).)" Second, " '[a]n inmate may request that the board exercise its discretion to advance a hearing . . . to an earlier date, by submitting a written request . . . which shall set forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate.' (§ 3041.5, subd. (d)(1).)" (Vicks, at pp. 284-285.) Vicks concluded that because the new statutory scheme "may function in a manner that mitigates the risk that the Board will fail to exercise its discretion at a point in time when it might have exercised its discretion under the prior scheme," "a significant risk of prolonging incarceration 'is not inherent in the framework' of the parole system as amended by Marsy's Law. (Vicks, at p. 301, quoting Garner v. Jones, supra, 529 U.S. at p. 251.) The court was not presented with any policies or practices followed by the Board, and therefore could not determine whether the "practical implementation of the scheme" created a significant risk of prolonging incarceration. (Vicks, at p. 301.)
Petitioner's ex post facto challenge focuses on the procedures the Board has established for advancing hearing dates, either in response to an inmate's "petition to advance" or of its own accord through "administrative review." Petitioner argues the Board's procedures rarely allow an inmate to obtain a suitability hearing 12 months after a hearing at which parole was denied, as would have been the case under prior law. As described on the California Department of Corrections and Rehabilitation (CDCR) website, under the administrative review process, the Board considers whether to advance a hearing 12 months after the hearing at which the inmate received a three-year denial, and if it finds a reasonable likelihood additional incarceration is not required, the hearing is scheduled for 18 months from the last hearing date (<https://www.cdcr.ca.gov/BOPH/docs/Policy/AR_Flowchart.pdf>). Administrative review thus results in the hearing being held six months later than the default timing under prior law. When an inmate files a petition to advance, a "placeholder" date is set for nine months later, which is when the hearing will be held if the petition to advance is granted (<https://www.cdcr.ca.gov/BOPH/docs/Policy/PTA_Process.pdf>). This means that in order to obtain a hearing date 12 months from a previous denial, the petition to advance must be filed no more than three months from the hearing at which parole was denied. Petitioner argues that in most cases this is too soon to be able to demonstrate the required changed circumstances or new information showing a reasonable likelihood parole will be granted. Moreover, petitioner maintains, there is a strong disincentive to filing a petition to advance because if the petition is denied, or if it is denied but parole is denied at the advanced hearing, Marsy's Law requires the inmate to wait three years before making another request to advance. (§ 3041.5, subd. (d)(3); Vicks, supra, 56 Cal.4th at p. 286.) Petitioner's claims on all these points are supported by the declarations of several attorneys with considerable experience representing life inmates at parole hearings.
Aspects of the Board's implementation of Marsy's law were challenged in Gilman v. Brown (9th Cir. 2016) 814 F.3d 1007 (Gilman II), a class action under title 42 of the United States Code section 1983 on behalf of California inmates sentenced to life terms for murders committed before passage of Proposition 9 and another proposition not relevant to the present case. The Ninth Circuit reversed the district court's determination that the petition to advance process did not sufficiently protect against ex post facto problems created by Marsy's Law (Gilman v. Brown (E.D. Cal. 2014) 110 F.Supp.3d 989 (Gilman I)), finding that the district court had relied upon "speculation and inference from anecdotal evidence, rather than evidence drawn from [section] 3041.5[, subdivision] (d)(1)'s practical implementation." (Gilman II, at p. 1017.) At oral argument in the present case, respondent for the first time argued that petitioner's ex post facto claim is barred by the doctrine of res judicata because petitioner was a member of the class in Gilman.
Res judicata applies where " '(1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]' " (People v. Barragan (2004) 32 Cal.4th 236, 253.) A prior judgment "is res judicata on matters which were raised or could have been raised" in the prior litigation. (Sutphin v. Speik (1940) 15 Cal.2d 195, 202.) "[A] judgment in a properly entertained class action is binding on class members in any subsequent litigation." (Cooper v. Federal Reserve Bank of Richmond (1984) 467 U.S. 867, 874.)
The parties do not dispute that Gilman resulted in a final judgment or that petitioner was a member of the class in that case. The claim—that application of Marsy's Law to petitioner violates constitutional ex post facto protections—is identical. As petitioner points out, however, " '[t]he doctrine of res judicata was never intended to operate so as to prevent a re-examination of the same question between the same parties where, in the interval between the first and second actions, the facts have materially changed or new facts have occurred which may have altered the legal rights or relations of the litigants. [Citations.]' " (In re Fain (1983) 139 Cal.App.3d 295, 301, quoting Hurd v. Albert (1931) 214 Cal. 15, 26.)
Petitioner's assertion that the claim in this case and Gilman are not identical because the present case is based on the state ex post facto clause, as well as the federal one is not persuasive because the "California provision provides the same protections and is analyzed in the same manner as the federal provision." (Vicks, supra, 56 Cal.4th at p. 287.) His assertion that the claims are not identical because his challenge is only to the application of Marsy's Law to life inmates denied parole for the minimum period of three years rather than the larger class of life inmates in Gilman, but does not explain how this distinction alters the nature of the issue, especially as the court in Gilman was well aware of the three-year minimum deferral period under Marsy's law. (Gilman II, supra, 814 F.3d at p. 1018, fn. 12).
Petitioner does not elaborate upon his assertion that his claim "necessarily involves very different facts" than the Board's implementation of Marsy's Law prior to April 17, 2017, when petitioner received his three-year denial. One significant factual difference, however, is obvious from a reading of the federal decisions. Petitioner's ex post facto claim is based on the procedures currently employed by the Board in processing inmate requests to advance hearings and in exercising its own discretion to advance hearings independent of an inmate request. The flowcharts on the CDCR website illustrating both "Administrative Review of 3-year Denials" and the "Petition to Advance Process" are dated August 2013. Taken at face value, this date indicates the procedures were adopted by the Board just after the trial in Gilman, which took place in June and July 2013. (Gilman I, supra, 110 F.Supp.3d 989, reversed Gilman II, supra, 814 F.3d 1007.) The district court's decision discusses testimony concerning the petition to advance process (id. at p. 1006), describing a process consistent with what is depicted in the flow chart and described in the declarations in petitioner's exhibits to this habeas petition from counsel who represent inmates at parole suitability hearings. The administrative review process, as portrayed on the website and described in the declarations, had not yet been implemented when the case was tried. (Gilman I, at p. 1006.) The district court found that "[a]lthough the Board has the authority to grant an advanced hearing sua sponte, it has never done so, because until recently, there has been no process for doing so"; "Post-Vicks, the Board is apparently implementing a procedure to implement sua sponte reviews"; and "[t]he Board is currently conducting sua sponte reviews, although as of the date of [the Board's executive officer's] testimony, none had ever been granted." (Id. at pp. 1006-1007.)
The administrative review process is central to petitioner's claim in the present case because, as we have said, under the procedure followed by the Board, a hearing advanced pursuant to administrative review will not occur until 18 months after the previous denial. To exercise its authority to advance a hearing, the Board must conclude that "a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration" set at the prior hearing. (§ 3041.5, subd. (b)(4).) If the Board finds such likelihood at or soon after the 12-month mark (the time at which the flow chart indicates it reviews cases to determine whether advancement is appropriate) but the advanced hearing is set 18 months from the last hearing, there is a period of six months during which incarceration continues despite the likelihood that the defendant is suitable for release. This is a period during which the Board's discretion " 'will not be exercised at all.' " (Vicks, supra, 56 Cal.4th at p. 300, citing Garner v. Jones, supra, 529 U.S. at p. 254; Gilman II, supra, 814 F.3d at p. 1018.) It is reasonable to infer that such an inmate, who is found likely suitable for parole at or near the one-year mark, would similarly likely have been found suitable to for release at his or her annual hearing under prior law. And since the Board's procedures begin the administrative review process one year after a three-year parole denial, appears all but impossible that the inmate could receive an advanced hearing date at or near the 12-month mark. This procedure—which was not, and could not have been, considered in Gilman, strongly suggests that the administrative review process does not sufficiently mitigate the risk of increased punishment created by the lengthened deferral periods under Marsy's Law.
As Gilman explained in the converse situation, "if the Board follows its manual, it will deny an advance hearing only if it concludes that the inmate is unlikely to be found suitable for parole in light of all the information presented. Such an inmate—one who is likely unsuitable for parole—by definition is likely not to have received parole before the enactment of Proposition 9." (Gilman II, supra, 814 F.3d at p. 1019.)
The fact that the Board is now following a procedure for advancement of parole hearings that was not, and could not have been, considered in Gilman renders the doctrine of res judicata inapplicable. The circumstances have materially changed: The Board is implementing Marsy's Law differently than it was when considered by Gilman.
Resolution of the question whether petitioner's rights, and those of other inmates in his situation, have been violated requires further factual investigation. Petitioner focuses on the timelines indicated in the procedures for administrative review and petitions to advance hearings, which he maintains rarely result in hearings advanced to a year from the previous parole denial. According to the attorney declarations in support of the petition, the Board's procedures for advancement generally result, at best, in hearings about 18 months following a previous denial. But "proving a significant risk of prolonged incarceration in parole cases requires exacting evidence" and "a decrease in the frequency of parole hearings—without more—is not sufficient." (Gilman II, supra, 814 F.3d at p. 1016.) While data compiled by petitioner's counsel indicates that far fewer grants of parole at hearing held within 12 or 15 months of a previous denial in 2016 and 2017 as compared with the last two years before application of Marsy's law, the same information demonstrates that the Board sometimes moves cases fast enough to meet or come close to the one-year deferral period under prior law. The record provides no basis for determining what factors were operating in the cases that did not result in parole within 12 or 15 months and whether those inmates had a reasonable likelihood of being found suitable for release after a shorter period. The critical question is whether the Board's implementation of Marsy's Law creates a significant risk that inmates who would have been able to demonstrate suitability for release at a hearing one or two years after a previous denial under prior law will not have the opportunity to do so under the current procedures.
As petitioner summarizes the data, in 2009 the Board granted parole at 336 hearings held within 15 months of the last denial (283 of these within 12 months), and in 2008 granted parole at 89 hearings within 15 months of the last denial (63 of these within 12 months). In 2017, petitioner says, parole was granted at 11 hearings within 15 months of the last denial, four of these within 12 months.
Some of the advanced hearings, however, were set for reasons unrelated to the Board's advancement procedures. One of the hearings held within 12 months of denial was set after appellate reversal of the decision from the prior hearing, one was a re-do ordered by the Board, and the third was for an inmate who had stipulated to a three-year deferral and then had a hearing nine months later, but the record does not indicate whether this resulted from administrative review or a petition to advance. Of the hearings held within 15 months, one was a do-over ordered by the Board, one resulted from administrative review advancement and two from petitions to advance, and the others are not explained.
In petitioner's case, there is strong reason to believe the current system would result in longer imprisonment than the old one. The presiding commissioner said nothing other than a "minimal denial length" would be appropriate for petitioner "[b]ecause you can figure this thing out," and was "sure" petitioner's hearing would be "moved forward" because "it's an insight only." The commissioner explained to petitioner that the Board would have to continue three-year denials until petitioner "figure[d] out why [he] did this," noting that in the "old days" there would have been one-year denials and "[n]ow its 18 months." The commissioner's comments support petitioner's contention that an 18-month review is the best inmates can hope for under the Board's procedures, as it indicates 18 months is now the expected interval between hearings when an inmate is viewed as being close to suitable for release.
Accordingly, we will order the superior court to conduct an evidentiary hearing in order to determine whether the manner in which the Board is currently implementing Marsy's law creates a significant risk of increased punishment in violation of the ex post facto clauses of the federal and state Constitutions.
II.
California law provides life inmates a right to representation by counsel at any hearing "for the purpose of setting, postponing, or rescinding a parole release date." (§ 3041.7.) Implementing this statutory provision, the Board's regulations provide that "[i]f a prisoner or parolee is entitled to be represented by an attorney at a hearing, an attorney will be provided at state expense if the prisoner or parolee cannot afford to retain private counsel." (Cal. Code Regs., tit. 15, § 2256, subd. (c).) Petitioner contends, however, that the Board's restrictive allowance for compensation of counsel appointed to represent inmates at parole hearings is insufficient to assure him and other life inmates effective assistance of counsel.
Respondent maintains that this issue is moot because in our January 19, 2018, order on petitioner's motion for preliminary relief, we authorized petitioner's current counsel "to represent petitioner at his next parole hearing, for reasonable compensation pursuant to the terms of his current appointment." Respondent may be correct that the issue is technically moot with respect to petitioner's next parole hearing, but it is of equal importance to the many others facing parole suitability hearings with appointed counsel. The issue would also arise again for petitioner if he is again denied parole.
We have inherent discretion to resolve an issue that is technically moot if it involves a matter of continuing public interest and the issue is likely to recur." (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 746747; County of Madera v. Gendron (1963) 59 Cal.2d 798, 804.) The question raised here " 'is a recurring problem important to other prisoners' " and the Board, and should be resolved. (In re William M. (1970) 3 Cal.3d 16, 2324.)
The vast majority of inmates are represented at parole hearings by Board-appointed counsel. (Friedman & Robinson, Rebutting the Presumption: An Empirical Analysis of Parole Deferrals Under Marsy's Law (2014) 66 Stan. L.Rev. 173, 197.) As reflected on the attorney invoice utilized by the Board, compensation in a given case is limited to $400: $25 for the appointment, $50 for review of materials sent to the attorney prior to the hearing, $75 for review of the inmate's central file at the prison, $75 for a client interview and $175 for personal appearance at the hearing (<https://cdcr.ca.gov/BOPH/docs/Invoicing/BPH-1076_Attorney_Invoice-fillable.pdf>). According to the attorney declarations in support of the petition, this fee schedule falls far short of compensating the time necessary to provide representation meeting minimum professional standards.
By contrast, the Friedman and Robinson study published in 2014 noted that private attorneys charge "as much as $5000" for representation at a parole hearing. (Friedman & Robinson, supra, 66 Stan. L.Rev. at p. 196.)
These declarations are from petitioner's appellate counsel, Michael Satris, who has been representing California prisoners "almost exclusively" since 1976, with much of his practice focused on parole issues "at every level of the state court and federal court system"; Keith Wattley, who has represented hundreds of life prisoners at parole hearings and thousands in litigation concerning the parole process, and is the executive director of a nonprofit organization that provides counseling and representation for life prisoners and trains and supervises lawyers and law students in this area; Heidi Rummel, who is a clinical professor of law and co-director of a program supervising certified law students representing life inmates in the parole process and challenging parole denials; Lawrence Strauss, who has been representing life inmates at parole hearings since the end of 2011, is in the rotation of attorney appointed by the Board, and represented petitioner at his 2017 hearing; and Tracy Lum, who has represented inmates at 750-1000 parole hearings since 2008 and served as a Board-appointed attorney from 2008 to 2011, when she began to represent only private clients because "the meager fee paid by the Board of Parole Hearings was inadequate given the amount of time, travel and effort that I was required to invest in each client to afford the client a minimum standard of representation."
The attorneys agree that professional representation in this context requires multiple interviews with the inmate; regular contact through phone calls and letters; review of the inmate's record, which can comprise thousands of pages; communication with family members and friends; and sometimes collection of historical documentation regarding the inmate's psychological profile, mitigating youth factors or circumstances of the commitment offense. The declarations emphasize the importance of preparation for the inmate's presentation to the Board, particularly with respect to the inmate's demonstration of the insight that is so critical to a determination of suitability for parole, and the substantial time necessary for such preparation. (See In re Perez (2016) 7 Cal.App.5th 65, 86 [noting that lack of insight " 'has been dubbed the " 'new talisman' " for denying parole' "].)
As the attorney invoice reflects, Board appointed attorneys are compensated only as specified on the attorney invoice: Compensation for the specified tasks (review of documents provided by Board and central file, client interview, appearance at hearing) is limited to the stated amount regardless of the time required, and there is no compensation for time spent on additional tasks such as client communication, contact with relatives, friends or potential employers or sponsors, investigation into and collection of documents relevant to suitability for release, nor for time and cost of travel to the prison. The attorney who represented petitioner at his 2017 hearing explains that due to the compensation limits, the Board appoints one attorney for a panel's week of hearings at the institution, which enables the attorney to make one trip to the prison to interview the week's inmates and review their files. He typically has a single half-hour interview with each inmate, at which he delivers the same general advice about presentation to the psychologist and to the Board, and review of each file is necessarily "cursory." Another attorney explains that she stopped representing inmates under Board appointment after several years, and now represents only private clients, because "the meager fee paid by the Board of Parole Hearings was inadequate given the amount of time, travel and effort that I was required to invest in each client to afford the client a minimum standard of representation." This attorney declares that for each client, it requires "dozens of hours" of her time to adequately prepare herself and the client to ensure each a "meaningful opportunity to demonstrate their suitability for parole to the Board." In the view of another, the fee schedule serves to "undermine rather than secure effective representation," as it places "such practical constraints on representation that the performance of appointed counsel regularly falls below the minimum professional standards for parole consideration."
Respondent denies that petitioner has a constitutional right to be represented by a state-funded attorney at parole hearings, or that the Board's compensation schedule is inadequate or results in inadequate representation. The return cites Swarthout v. Cooke (2011) 562 U.S. 216, 220, which held that while the federal due process clause requires that a state-created liberty interest in parole be protected by "fair procedures," the required procedures in the parole context are "minimal"—an opportunity to be heard and a statement of reasons for denial.
This point does not directly answer petitioner's contention. Swarthout was concerned with California's "some evidence" standard for review of parole decisions. The Ninth Circuit had granted habeas corpus relief for what it viewed as state courts' misapplication of the "some evidence" rule. As relevant here, Swarthout held that "correct application of the State's 'some evidence' standard is not required by the federal Due Process Clause." (Swarthout v. Cooke, supra, 562 U.S. at p. 219.) The court's conclusion that an opportunity to be heard and statement of reasons for denial were the only procedures required to protect the state-created liberty interest in parole does not shed light on what "fair procedures" due process requires for vindication of the statutory right to counsel at a parole hearing.
Regardless of whether petitioner has a constitutional right to counsel at his probation hearing, California law affords him a right to representation by counsel and the Board affords him, as an indigent inmate, a right to state-funded representation. In the context of petitions for writs of habeas corpus, in which there is no constitutional right to counsel (In re Barnett (2003) 31 Cal.4th 466, 475), the California Supreme Court observed, "[r]egardless of whether a constitutional right to counsel exists, a petitioner who is represented by counsel when a petition for writ of habeas corpus is filed has a right to assume that counsel is competent and is presenting all potentially meritorious claims." (In re Clark (1993) 5 Cal.4th 750, 780 (Clark).) For that reason, Clark held that a claim of ineffective assistance of counsel in a prior habeas proceeding could be considered in determining whether a new habeas petition was procedurally barred because the issue could have been raised in the earlier proceeding. So, here, an inmate who is represented by appointed counsel at a parole suitability hearing is entitled to assume counsel will perform adequately. Certainly, the inmate should be entitled to assume that the representation provided by a Board-appointed attorney will not be so limited by the terms of the appointment as to preclude representation meeting a basic level of professional conduct.
Clark acknowledged the federal rule that where there is no constitutional right to counsel, there can be no constitutionally ineffective counsel. (Coleman v. Thompson (1991) 501 U.S. 722, 752 (Coleman), overruled in part by Martinez v. Ryan (2012) 566 U.S. 1 [inadequate assistance of counsel at initial review collateral proceedings may establish cause for procedural default of claim of ineffective assistance of counsel at trial].) While there is no constitutional right to counsel for habeas corpus proceedings, California provides by statute (and longstanding Supreme Court policy and practice) for appointment of counsel in capital cases. (Ibid.; In re Sanders (1999) 21 Cal.4th 697, 720 (Sanders); Govt. Code, § 68662.) As subsequently explained in Sanders, Clark "acknowledged the tension between the federal cases finding no constitutional right to appointed counsel for state habeas proceedings [citations] and the practice of this court, which appoints such counsel. Clark resolved the tension by recognizing these two concepts are not linked; a prisoner who has appointed counsel is entitled to rely on that attorney to conduct a reasonable investigation and, if appropriate, present viable claims in a single petition so as to avoid the prohibition on successive or seriatim petitions." Clark concluded that appointed counsel's failure to render effective assistance could be offered as explanation and justification for the need to file an additional petition; Sanders similarly permitted consideration of a claim of abandonment by prior counsel offered in explanation and justification for a delay in filing a habeas petition. (Sanders, at p. 720; Clark, supra, 5 Cal.4th at p. 780.)
Under Clark and Sanders, the concept of ineffective assistance of counsel was not used as a remedy to avoid the consequence of the proceeding in which counsel allegedly performed deficiently, but rather to remove an obstacle to the prisoner raising a new issue in a subsequent proceeding. Here, recognizing that a state-granted right to counsel creates an expectation that counsel will render competent representation would not create a right to claim ineffective assistance of counsel as a means of challenging a parole decision. Our point is simply that where the state has chosen to provide counsel, it cannot simultaneously impose financial constraints that in effect prevent counsel from rendering competent representation. --------
The right to counsel has been recognized as paramount among the protections that aim to ensure fairness of the parole hearing. In rejecting an ex post facto challenge to an earlier version of section 3041.5 (permitting the Board to review suitability after two years rather than annually), the California Supreme Court noted that inmates' procedural rights at the hearing "are in place to guard against arbitrary or erroneous decisions, and to ensure that the inmate receives 'due consideration' of his or her present suitability for parole. (In re Sturm (1974) 11 Cal.3d 258, 268.) Paramount among these are the right to reasonable assistance in preparing for the hearing, and in the case of life prisoners, the right to counsel at the hearing. (§ 3041.7; Cal. Admin. Code, tit. 15, §§ 2251, 2256.) Both rights provide an inmate with a meaningful opportunity to argue for a finding of suitability, and, failing that, against a postponement. Section 3041.5 also requires that any postponement of annual review be justified with a statement of reasons. Together, these guarantees act as insurance that any postponement decision be well-founded." (In re Jackson (1985) 39 Cal.3d 464, 473-474.)
The role of counsel at the parole suitability hearing is also important because this is the only postconviction stage at which the inmate is entitled to representation by counsel. If parole is denied, the inmate has no right to counsel in pursuing review of the Board's decision through a petition for habeas corpus; only if the inmate succeeds in establishing a prima facie case for relief and the reviewing court issues an order to show cause will counsel be appointed. (Clark, supra, 5 Cal.4th at pp. 779-780; People v. Shipman (1965) 62 Cal.2d 226, 231-232.) An inmate has a due process liberty interest in parole (In re Lawrence (2008) 44 Cal.4th 1181, 1191), and the stakes for a life inmate at a parole suitability hearing are tremendous. The lengthy deferral periods prescribed by Marsy's Law magnify the consequences: A 15-year denial may result in a more significant deprivation of liberty than an adverse jury verdict in many criminal cases, and even inmates like petitioner, who are denied for the minimum period, must wait three years for another chance to demonstrate suitability, absent advancement of the next hearing date.
Counsel's ability to provide meaningful assistance necessarily depends upon his or her ability to become familiar with an inmate's case and circumstances, conduct any necessary investigation and prepare the inmate for the parole hearing. As explained in the attorney declarations supporting this petition, preparation for the issues likely to play a critical role at the hearing often requires considerable time and contact with the inmate. Compensation at rates significantly too low to allow sufficient preparation would necessarily undermine counsel's ability to provide assistance meeting professional standards, thereby rendering the statutory right to counsel a " 'hollow right.' " (In re Kristen H. (1996) 46 Cal.App.4th 1635, 1660.)
The declarations in this record make clear that these attorneys find the Board's maximum compensation of $400 per case substantially too little to allow adequate representation. Some of the issues at a parole hearing may be relatively straightforward, such as whether the inmate committed disciplinary violations or earned laudatory recommendations, and therefore require comparatively little preparation. But, as this case demonstrates, even a prisoner whose only barrier to release is a perceived lack of insight into his criminal conduct and who in fact has developed such insight may have difficulty communicating his understanding in terms the Board finds acceptable. As explained in the attorney declarations, one of the critical tasks for the attorney is to advise and help prepare the inmate to communicate effectively with the Board regarding such issues. This necessarily requires not only time for communication with the inmate but also familiarity with the inmate's past and present conduct and progress over many years of incarceration, past appearances before the Board and reasons for previous denials of parole, which in turn necessarily requires review of many years' worth of prison records, psychological evaluations and past hearing transcripts. The fees allotted for each of the tasks listed on the Board's schedule would translate to exceedingly low hourly rates if an attorney were to spend more than an hour or two on any of them. For example, as indicated above, the Board pays $75 for review of an inmate's central file. As the attorney declarations attest, this file may contain hundreds or thousands of pages, as prisoners such as petitioner have spent decades in prison. Even spending only two hours reviewing these records would mean compensation at only $37.50 per hour. The Board pays $175 for counsel's appearance at the parole hearing. Petitioner's 2017 hearing lasted almost 5 hours, meaning his attorney was compensated at an hourly rate of $35; for the hearing in 2015, which lasted almost four hours, his attorney earned $43.75 per hour. And because counsel are not compensated for their time or expense in traveling to the prison, their effective rates of compensation are even lower. While there is undoubtedly a range in the time required to adequately represent inmates, varying with both the particulars of a given inmate's situation and the skills and abilities of individual attorneys, it is apparent, at a minimum, that some cases will demand time far in excess of what any attorney could provide for something approaching reasonable compensation. Yet the Board's schedule imposes a limit of $400 per case, regardless of the size of the documentary record, length of the actual hearing, need for client contact other than the interview, or additional investigation.
The Board's compensation schedule obviously contemplates relatively little time spent in preparation for a hearing with profound consequence for the inmate. In fact, considering that $175 of the maximum $400 per case is designated as payment for counsel's appearance at the hearing, the schedule allots only $225 for all preparation for the hearing—client contact, review of records, legal research, investigation. It is clear that this schedule could not provide counsel with reasonable compensation in any but the most straightforward case, and implementation of the statutory right to counsel cannot be left to attorneys' willingness to provide their services pro bono.
We agree with petitioner that the Board's current compensation schedule for appointed counsel appears to interfere with petitioner's statutory right to counsel. But the matter is complex. The question is not whether the Board's fee schedule permits appointed counsel to provide the representation counsel would deem best or most effective, but whether it prevents counsel from representing inmates in a manner that meets reasonable professional standards. The attorney declarations in this record do not clearly delineate what is required to meet a baseline standard of professional competence, as opposed to ideal representation. Additionally, budgetary considerations necessarily impose limits on compensation at public expense, and reasonable professional standards in this arena must take this financial reality into account. On the present record, we have no basis for evaluating how the compensation provided by the Board and level of representation exhibited by Board-appointed counsel at parole suitability hearings compares with other areas in which counsel are appointed to represent criminal defendants or convicted prisoners at public expense. We therefore find it appropriate to require petitioner to present evidence on these issues to the trial court, in order to allow that court to determine whether the Board's current procedures for appointed counsel in fact result in representation falling below a reasonable professional standard. If they do, as petitioner recognizes, the only relief consistent with appropriate deference to the executive branch would be an order directing the Board to fashion procedures that cure the current deficiencies.
DISPOSITION
The matter is hereby transferred to the Superior Court of Alameda County, with directions to conduct proceedings, consistent with the views expressed herein, to address the questions (1) whether the Board's implementation of Marsy's Law imposes ex post facto punishment on prisoners whose life offenses were committed prior to enactment of that law, and (2) whether the Board's procedures and fee schedule for appointed counsel deprive petitioner and other life inmates of effective assistance of counsel.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.