Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. 1037775, Donald E. Shaver, Judge.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill and Amy Daniel, Deputy Attorneys General, for Defendant and Appellant.
Steve M. DeFilippis, under appointment by the Court of Appeal, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
Russell Samuel Trunzo was convicted of second degree murder in 1979 and released to parole in 2009, with a three-year parole term. Trunzo filed a petition for habeas corpus in the Stanislaus County Superior Court (superior court) alleging, in relevant part, that he was unlawfully incarcerated from September 20, 2007, to January 1, 2009, and is entitled to have this period of time credited to reduce his parole term. The superior court agreed and issued an order awarding him 386 actual days of credit. The Board of Parole Hearings (Board) appealed this order. They argue Trunzo was not unlawfully incarcerated at any point in time; therefore, he is not entitled to any credits against his parole term. The Board is correct. We will reverse the contested order and direct the superior court to enter a new order denying the petition for habeas corpus.
FACTS
On the morning of December 21, 1978, Trunzo was living in a motel room with L.H. and her two-year-old child. L.H. left the child in Trunzo’s care while she went to work. While she was away, Trunzo fatally beat the toddler. The cause of death was head trauma. The autopsy revealed evidence of other injuries which indicated the child was beaten during the two-week period prior to its death.
On July 12 1979, Trunzo was convicted after jury trial of second degree murder and sentenced to an indeterminate term of 15 years to life.
In a 2003 “Life Prisoner Evaluation, ” Trunzo admitted striking and shaking the child because he was angry with the child for wetting its diaper and failing to defecate in the toilet. Trunzo placed the child on the toilet and shook it, causing the child’s head to hit the toilet tank. Trunzo also admitted he and L.H. had not properly cared for the child prior to its death due, in part, to their abuse of drugs and alcohol.
On September 20, 2007, the Board held a parole consideration hearing and found Trunzo unsuitable for parole (the 2007 parole denial).
Prior to the 2007 parole denial, the Board decided Trunzo was unsuitable for parole after a hearing in 2003. Trunzo challenged the 2003 parole denial in a petition for habeas corpus filed in the federal District Court for the Northern District of California. On March 13, 2008, the federal court issued an unpublished decision holding the Board’s determination denied Trunzo due process of law. It issued an order directing the Board to set a release date within 60 days. Trunzo asserted that due to “delays in getting to federal court, that order never came into play prior to [his] actual release.”
Trunzo challenged the 2007 parole denial in a petition for habeas corpus filed in the superior court (the first habeas petition). On September 11, 2008, the superior court issued an order granting the first habeas petition (order on the first habeas petition). It found the 2007 parole denial was not supported by some evidence that Trunzo continued to pose a threat to public safety. It ordered the Board “to vacate its earlier decision to deny parole, and within 60 days of the date of this order to set a release date consistent with the matrix.”
When a life prisoner is found suitable for parole, the Board sets a suggested base term for the commitment offense by using a matrix contained in the California Code of Regulations. For second degree murder, the matrix of base terms ranges from a low of 15, 16, or 17 years, to a high of 19, 20 or 21 years. (15 Cal. Code Regs. § 2403, subd. (c).)
The Board held a parole consideration hearing on October 15, 2008.
Counsel for Trunzo objected to the hearing on the ground that the superior court “has ordered the Board to set a release date, absolutely nothing else that needs to be done today.”
The Board noted the objection and proceeded with the hearing. The presiding commissioner stated, “… per the Penal Code, there is no provision for the Board to walk in and grant a release date. A release date is only granted if [the Board finds] suitability after a hearing.”
A deputy district attorney argued the superior court “ruled that the Board’s prior decision was lacking in facts. It wasn’t based on adequate facts. What I’m trying to do is illustrate to the Board and anybody else who might read this transcript down the road that there are plenty of facts in the record that ought to be evaluated with regards to this inmate’s suitability.”
After conducting the hearing, the Board found Trunzo suitable for parole and calculated a release date (the 2008 parole decision). It set a suggested term of 20 years.
On November 24, 2008, Trunzo filed an application for an order to show cause re contempt and request for monetary sanctions (contempt application). Trunzo sought issuance of an order holding the Board in contempt for conducting a parole suitability hearing instead of just setting a release date.
The Board’s 2008 parole decision became final on December 5, 2008.
On December 22, 2008, the superior court conducted a hearing on the contempt application. It issued an order finding the Board in contempt (the contempt order). The superior court reasoned that the Board was in contempt because it failed to vacate the 2007 decision and set a release date for Trunzo, as it was directed to do in the order on the first habeas petition. The superior court ordered Trunzo to be immediately released from custody on his own recognizance, even though it acknowledged that the Governor was still reviewing the Board’s decision granting Trunzo parole. Also, the superior court ordered the Board to pay Trunzo’s attorney $2,500 in compensation for the “unnecessary and unauthorized” parole suitability hearing.
The Board applied to this court for an emergency temporary stay of the contempt order (stay application).
On December 22, 2008, we issued an order providing “[a]ny and all orders in Stanislaus County Superior Court case Nos. 1036158 and 1037775 ordering the release of Russell S. Trunzo, are hereby ordered stayed pending further order of this court or determination of the above entitled action.”
On December 29, 2008, the Governor declined to review the 2008 parole decision.
On January 1, 2009, Trunzo was released to parole, with a three-year parole term.
On January 5, 2009, the Board withdrew the stay application. Three days later, this court denied it as moot because the Board “seeks to abandon [it] and states [it] has become moot.”
Trunzo asserted that the Board subsequently challenged the monetary sanction portion of the contempt order by filing a certiorari petition in the appellate division of the superior court. In November 2010, the Board represented to this court that the certiorari petition was pending.
On June 30, 2009, Trunzo filed a second petition for writ of habeas corpus in the superior court (the second habeas petition). In relevant part, Trunzo alleged the Board’s 2007 parole denial violated his due process right and he had been unlawfully incarcerated from September 20, 2007, to January 1, 2009. Trunzo asserted that he was “entitled to have that time credited towards his parole and reduced accordingly.”
On October 1, 2009, the superior court issued an order to show cause and tentative decision on the second habeas petition. In relevant part, it found that pursuant to In re Bush (2008) 161 Cal.App.4th 133 (Bush) and McQuillon v. Duncan (9th Cir. 2003) 342 F.3d 1012 (McQuillon), Trunzo “appears to be entitled to credit against his parole for any period of unlawful incarceration he has served.”
On December 9, 2009, the superior court issued an order adopting the tentative decision and partially granting the second habeas petition (order on the second habeas petition). The superior court determined that Trunzo “is entitled to be placed in as nearly the same situation as possible on credits as he would have been had the Board found him suitable for Parole on September 20, 2007.” Since Trunzo was released from custody 78 days “[f]ollowing the Board’s ‘rehearing’ of the matter on October 15, 2008, ” Trunzo “is entitled to credit from 78 days after September 20, 2007 to January 1, 2009, or 386 actual days.”
The Board unsuccessfully sought a stay of the order on the second habeas petition in the superior court.
On January 25, 2010, the Board filed a notice of appeal of the order on the second habeas petition.
In the second habeas petition, Trunzo also raised a separate legal claim that he was entitled to be released from parole. The superior court rejected that contention in the order on the second habeas petition. Trunzo filed a petition for habeas corpus in this court challenging that ruling, which we denied.
DISCUSSION
The Board contends that the order on the second habeas petition must be reversed because Trunzo was not unlawfully incarcerated at any point in time; therefore, he is not entitled to any credits against his parole term. We agree.
The appeal presents a legal issue concerning application of law to established record facts. The superior court made a decision of law based solely on documentary evidence. Therefore, the de novo standard of review applies. (In re Rosenkrantz (2002) 29 Cal.4th 616, 677; Bush, supra, 161 Cal.App.4th at p. 140.)
As we will explain, the order on the second habeas petition was premised on the superior court’s assumption that its prior orders were legally correct. That assumption was incorrect. The order on the second habeas petition was the culmination of a series of rulings reflecting a faulty understanding by the superior court about the jurisdictionally defined roles of the executive and judicial branches in parole matters. The superior court failed to respect the separation of powers doctrine and this ultimately caused it to err when ruling on the second habeas petition.
During the pendency of this appeal, our Supreme Court decided In re Prather (2010) 50 Cal.4th 238 (Prather). Prather assessed the propriety of remedies that were fashioned by the appellate courts in two cases where the Board’s parole unsuitability findings for two prisoners serving indeterminate life sentences, Michael B. Prather and Miguel Molina, were overturned because they lacked some evidence.
In Prather’s case, the appellate court “did not simply direct the Board to conduct a new hearing, but instead directed the Board ‘to find Mr. Prather suitable for parole unless, within 30 days of the finality of this decision, the Board holds a hearing and determines that new and different evidence of Mr. Prather’s conduct in prison subsequent to his 2007 parole hearing supports a determination that he currently poses an unreasonable risk of danger to society if released on parole.’” (Prather, supra, 50 Cal.4th at p. 246, fn. omitted.)
In Molina’s case, the appellate court determined that “‘[a]ny further delay is unwarranted, ’” and it “remanded the matter to the trial court with directions to ‘in turn remand to the Board with instructions to release Molina on parole in accordance with conditions set by the Board.’” (Prather, supra, 50 Cal.4th at p. 248.)
Our high court “granted review in these two cases to determine the proper scope of an order directed to the Board of Parole Hearings (the Board) when a reviewing court concludes that a decision to deny parole by the Board is not supported by ‘some evidence’ that a prisoner remains a current threat to public safety.” (Prather, supra, 50 Cal.4th at p. 243.)
It consolidated the cases for decision and determined that the remedies fashioned by both appellate courts were improper. The Supreme Court held that when a court determines a parole unsuitability finding lacks evidentiary support, “it is improper for a reviewing court to direct the Board to reach a particular result or to consider only a limited category of evidence in making a suitability determination.” (Prather, supra, 50 Cal.4th at p. 253.) The matter should be remanded for further proceedings “without improper limitation to permit the executive branch to exercise its statutory and constitutional authority over parole decisions.” (Id. at p. 257.) A court order that purports “in the case of Prather, to confine the Board’s consideration of evidence solely to new evidence of Prather’s ‘conduct in prison’ since his last parole hearing and, in the case of Molina, to dispense entirely with any further evaluation by the Board or the Governor -- materially infringe[s] upon the Board’s discretion to make parole decisions on the basis of all relevant information, and thereby improperly circumscribe[s] the Board’s statutory directive.” (Id. at p. 255.)
This holding rests on the separation of powers doctrine. (Prather, supra, 50 Cal.4th at pp. 254, 257.) Our Supreme Court explained, “‘Although the doctrine is not intended to prohibit one branch from taking action that might affect those of another branch, the doctrine is violated when the actions of one branch “defeat or materially impair the inherent functions of another branch. [Citation.]” [Citation.] Intrusions by the judiciary into the executive branch’s realm of parole matters may violate the separation of powers.’” (Id. at p. 254.) Thus, “Orders that are designed to limit the Board’s consideration of evidence to only recent and specified changes in the existing record before the Board necessarily limit that body’s consideration of all relevant factors, thereby improperly curtailing the Board’s exercise of the authority it possesses under the governing statutes.” (Id. at p. 255.) Since “a reviewing court may not improperly limit the evidence upon which the Board may rely in making a suitability determination, it follows that a court may not bar the Board from considering any evidence at all. Moreover, by ordering Molina’s release prior to review by the Governor, the court’s directive also improperly intrudes upon the Governor’s independent constitutional authority to review the Board’s parole decision. [Citations.]” (Id. at p. 257.)
Following and applying Prather, supra, 50 Cal.4th 238 to the facts presented in this appeal, we conclude that Trunzo’s incarceration was not unlawful at any point in time prior to his release in January 2009. The superior court’s order on the first habeas petition is virtually identical to the order issued by the appellate court in response to Molina’s habeas petition, which our high court concluded in Prather violated the separation of powers doctrine. In Molina’s case, the trial court ordered the Board to release Molina on parole. Similarly, in this case the superior court unconditionally ordered the Board to set a release date for Trunzo.
Trunzo did not have a constitutional right to be released from custody after the superior court determined the Board’s 2007 parole denial was not supported by some evidence. In ruling on the first habeas petition, the superior court should have reversed the 2007 parole denial and directed the Board to proceed in accordance with due process of law by conducting a new parole consideration hearing. (Id. at p. 257.) It was erroneous for the superior court to have barred any further review by the Board and to have ordered Trunzo’s release. (Ibid.)
Thus, the Board did not violate Trunzo’s due process right by conducting a parole suitability hearing in October 2008. This hearing was the proper remedy that should have been ordered by the superior court when it granted the first habeas petition. (Prather, supra, 50 Cal.4th at p. 258.) The Board granted Trunzo parole. The parole decision was considered by the Governor and he declined to review it. Trunzo was released on parole following the Governor’s decision. All of these proceedings were lawful. Therefore, Trunzo’s incarceration during this period of time did not violate his due process rights and he was not unlawfully incarcerated at any point in time.
Since we have determined that Trunzo was not unlawfully incarcerated, Bush and McQuillan are both distinguishable. In both of those cases, the petitioners were unlawfully held in custody beyond the last date they could lawfully have been incarcerated.
In Bush, supra, 161 Cal.App.4th 133, the Governor exercised his authority to request an en banc Board review following a finding that petitioner was suitable for parole. However, the Governor’s request was untimely. Therefore, the appellate court concluded Bush was legally entitled to be released when the Board’s decision granting him parole became final. Since Bush was held in custody beyond the last date that he could lawfully have been incarcerated, he was granted credits against his parole period.
McQuillan, supra, (2003) 342 F.3d 1012 is a lower federal court opinion that is not binding on the court. (People v. Zapien (1993) 4 Cal.4th 929, 989.) Petitioner was granted a parole release date but the Board rescinded it. The rescission was overturned on judicial review. Petitioner was incarcerated during the pendency of the court proceedings. The federal court concluded he was held in custody beyond the date he was legally entitled to be released and credited this period against his parole term.
In contrast, Trunzo was not held in custody beyond the time when he could be lawfully incarcerated. As we have explained, the remedy fashioned by the superior court in the order on the first habeas petition violated the separation of powers by “impermissibly impair[ing] the Board’s exercise of its inherent discretion to decide parole matters.” (Prather, supra, 50 Cal.4th pp. 255-256.) The superior court did not have the legal authority to order Trunzo’s immediate release without further proceedings before the Board, and without review by the Governor. (Id. at p. 257.) Therefore, the Board’s decision to conduct a parole suitability hearing in October 2008 did not infringe Trunzo’s due process right. The Board found Trunzo suitable for parole and Trunzo was released in a timely manner following the Governor’s decision not to review the case.
Since Trunzo was not unlawfully incarcerated during the period of time in which members of the executive branch exercised their authority to make a parole decision, he is not entitled to any credits against his parole period. The superior court erred in concluding otherwise. We will reverse the order on the second habeas petition.
Accordingly, the Board’s contention that the second habeas petition should have been denied because Trunzo did not file a traverse is moot.
DISPOSITION
The December 9, 2009, order on the second habeas petition is reversed. The superior court is directed to enter a new order denying the second habeas petition and to transmit a certified copy of the new order to the appropriate authorities.
WE CONCUR: Hill, J., Poochigian, J.