Filed 3/28/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
C092799
In re LARRY BAILEY,
(Super. Ct. Nos.
On Habeas Corpus. 19HC00233,18HC00188)
APPEAL from a judgment of the Superior Court of Sacramento County, Steve W.
White, Judge. Reversed.
Rob Bonta and Matthew Rodriquez, Attorneys General, Phillip J. Lindsay, Senior
Assistant Attorney General, Sara J. Romano and Amanda J. Murray, Supervising Deputy
Attorneys General, Michael G. Lagrama and Linnea D. Piazza, Deputy Attorneys
General, for Appellant.
Byron C. Lichstein, under appointment by the Court of Appeal, for Respondent.
In 2014, a jury found petitioner Larry Bailey guilty of assault with a deadly
weapon and leaving the scene of an accident and found true various enhancements.
Petitioner was sentenced to 28 years in prison.
“In 2016, voters approved Proposition 57, the ‘Public Safety and Rehabilitation
Act of 2016.’ Proposition 57 amended the California Constitution to grant early parole
consideration to persons convicted of a nonviolent felony offense. (Cal. Const., art. I,
§ 32, subd. (a)(1).)[1] It also authorized the Department of Corrections and Rehabilitation
1 All further references to section 32 and its subdivisions in this opinion are to
article I, section 32 of the California Constitution.
1
([Department]) to adopt regulations in furtherance of its guarantee of early parole
consideration. (Id., subd. (b).) Acting pursuant to this authority, [the Department] issued
regulations governing early parole consideration for persons serving a determinate
sentence for a nonviolent felony offense. (Cal. Code Regs., tit. 15, §§ 2449.1, 2449.3-
2449.7, 3490-3493 (hereafter, the parole regulations).)” (In re Kavanaugh (2021) 61
Cal.App.5th 320, 334, fns. omitted.)
In 2017 and 2018, the Board of Parole Hearings (Board) considered petitioner for
Proposition 57 parole. In each of the parole consideration proceedings, the Board
allowed petitioner to submit a written statement explaining why he should be granted
parole. The Board explained, “[t]his is a ‘paper review’ process” and “[t]here will not be
a hearing for you or others to attend.” (Bolding omitted.) The Board, through written
decisions by a deputy commissioner, both times denied petitioner parole. Petitioner
requested administrative review of each of the parole decisions; both decisions were
upheld.
Petitioner thereafter filed two petitions for writ of habeas corpus in the trial court.
The trial court consolidated the petitions and issued an order to show cause. The trial
court denied petitioner’s claims challenging the evidentiary sufficiency of the parole
denials, but granted petitioner habeas relief after finding he was entitled to “a live parole
hearing at which [he] could attend.” The trial court interpreted Penal Code
section 3041.5 “ ‘as providing for a hearing for all inmates eligible for parole
consideration, at the very least to comply with federal and state due process concerns as
well as equal protection.’ ”
The trial court further ordered the Department to, within 60 days of the finality of
the decision, promulgate new parole regulations to reflect the right to an in-person
hearing under Proposition 57. The trial court explained “ ‘it is not necessary for the
Department to promulgate regulations that provide for a live hearing in every single case.
Rather, the Department could choose to provide for live hearings only for those inmates
2
not granted parole in an initial paper review, upon request of that inmate.’ ” The
Department appeals.
The question before us is whether determinately sentenced nonviolent prisoners
eligible for parole consideration under Proposition 57 are constitutionally entitled to an
in-person hearing. The answer is, “no.” We conclude Proposition 57 neither requires nor
impliedly incorporates an in-person hearing requirement, and the Department acted
within its delegated authority under section 32, subdivision (b) when it adopted the parole
regulations at issue in this appeal. We further conclude the absence of an in-person
hearing does not violate equal protection principles, nor does it violate a prisoner’s right
to procedural due process. We accordingly reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying petitioner’s conviction are not material to the disposition of
this appeal. We thus do not recite them here. We further do not recite the particulars as
to the trial court’s decision because our standard of review is de novo. (California
Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 208 [equal protection claims
are reviewed de novo]; Kwan Software Engineering, Inc. v. Hennings (2020) 58
Cal.App.5th 57, 82 [procedural due process claims are reviewed de novo]; Wang v. City
of Sacramento Police Dept. (2021) 68 Cal.App.5th 372, 378-379 [statutory construction/
interpretation claims are reviewed de novo].) We recite only the background relevant to
the pertinent parole regulations, the validity of which is the subject of this appeal.
I
Proposition 57
“In 2009, a three-judge federal district court panel ordered the Department ‘to
reduce the prisoner population to 137.5% of the adult institutions’ total design capacity.’
[Citations.] The California Legislature and electorate subsequently enacted several
measures aimed to reduce the prison population, including Assembly Bill No. 109
((2011-2012 Reg. Sess.); Stats. 2011, ch. 15, § 482; criminal realignment) and
3
Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000). Still, the issue
persisted and in February 2014 the federal district court ordered the Department to
implement additional measures.
“Against this backdrop, in November 2016 the electorate approved Proposition 57.
[Citation.] As relevant here, the initiative added section 32 to article I of the California
Constitution. The new section states: ‘Any person convicted of a nonviolent felony
offense and sentenced to state prison shall be eligible for parole consideration after
completing the full term for his or her primary offense.’ [Citation.] It further provides
that ‘the full term for the primary offense means the longest term of imprisonment
imposed by the court for any offense, excluding the imposition of an enhancement,
consecutive sentence, or alternative sentence.’ [Citation.] Finally, as noted earlier, the
new provision directs the Department to ‘adopt regulations in furtherance of these
provisions’ and instructs the Secretary of the Department to ‘certify that these regulations
protect and enhance public safety.’ [Citation.]
“Article I, section 32(a) identifies the purposes behind the constitutional provision,
stating that it was ‘enacted to enhance public safety, improve rehabilitation, and avoid the
release of prisoners by federal court order, notwithstanding anything in this article or any
other provision of law.’ Uncodified portions of Proposition 57 further identify the
initiative’s purpose and intent. Those purposes, in relevant part, are: ‘1. Protect and
enhance public safety. [¶] 2. Save money by reducing wasteful spending on prisons. [¶]
3. Prevent federal courts from indiscriminately releasing prisoners. [¶] 4. Stop the
revolving door of crime by emphasizing rehabilitation, especially for juveniles.’
[Citation.] The initiative also states that the ‘act shall be liberally construed to effectuate
its purposes.’ ” (In re Gadlin (2020) 10 Cal.5th 915, 922-923, fn. omitted.)
4
II
The Pertinent Parole Regulations
“Under the parole regulations, a person sentenced to a determinate term for a
nonviolent felony is generally eligible for early parole consideration when he or she has
served the full term of his or her primary offense. [Citations.] [The Department]
conducts the parole eligibility reviews and refers eligible prisoners to the Board for
parole consideration on the merits. [Citations.] Eligibility reviews are conducted
annually ‘until the inmate is released from custody or is no longer eligible for parole
consideration . . . .’ [Citations.]
“If a prisoner is found eligible for parole consideration and referred to the Board,
the Board must provide notification about the pending parole review to the prisoner, the
prosecuting agency, and the victim(s) who were harmed by the prisoner’s crime(s).
[Citations.] The Board must also afford the prisoner, the prosecuting agency, and the
victim(s) an opportunity to submit a written statement to the Board. [Citations.]
“A hearing officer -- defined by regulation as a Board commissioner, a deputy
commissioner, an associate chief deputy commissioner, or the chief hearing officer
[citation] -- must then review the ‘case on the merits and determine whether to approve
the inmate’s release,’ [citation]. When conducting the merits review, the hearing officer
must ‘review and consider all relevant and reliable information’ including but not limited
to the prisoner’s central file, the prisoner’s documented criminal history, and any written
statements submitted by the prisoner, the prosecuting agency, and/or the victim(s).
[Citation.] The hearing officer must weigh various aggravating and mitigating factors
pertaining to the prisoner’s current conviction(s), prior criminal conviction(s) and
behavior, and institutional behavior, work history, and rehabilitative programming, as
well as the written statements received by the Board. [Citation.] The factors are ‘general
guidelines’ and ‘the importance attached to any factor or combination of factors in a
particular case is left to the judgment of the hearing officer.’ [Citation.]
5
“The hearing officer must then issue a written decision, supported by a statement
of reasons, determining whether the prisoner poses a current, unreasonable risk of
violence or a current, unreasonable risk of significant criminal activity. [Citation.] If the
hearing officer finds the prisoner poses such a risk, the hearing officer must deny parole
release. [Citation.] If the hearing officer finds the prisoner does not pose such a risk, the
hearing officer must grant parole release. [Citation.] But, if the parole release decision
will result in the prisoner’s release two or more years prior to his or her earliest possible
release date, the parole release decision must be reviewed by an associate chief deputy
commissioner or the chief hearing officer, who may concur with the decision or issue a
new decision approving or denying the parole release. [Citation.]
“Within 30 days of being served with the hearing officer’s parole release decision,
the prisoner may request review of the decision. [Citations.] The request for review
must ‘include a description of why the inmate believes the previous decision was not
correct and may include additional information not available to the hearing officer at the
time the previous decision was issued.’ [Citation.] A hearing officer not involved in the
original decision must then, within 30 days of the Board’s receipt of the request for
review, ‘consider all relevant and reliable information and issue a decision either
concurring with the previous decision or overturning the previous decision with a
statement of reasons supporting the new decision.’ ” (In re Kavanaugh, supra, 61
Cal.App.5th at pp. 336-337, fn. omitted.)
6
DISCUSSION 2
I
The Case Is Not Moot
In a footnote in its reply brief, the Department asserts the trial court’s order should
be vacated because the order is moot following petitioner’s subsequent release to parole.
We fail to see how petitioner’s release to parole moots the trial court’s order directing the
Department to promulgate regulations and we agree with Kavanaugh that a prisoner’s
“release from prison does not moot the appeal of the trial court order [that] invalidate[s]
the parole regulations.” (In re Kavanaugh, supra, 61 Cal.App.5th at p. 340, fn. 8.)
“ ‘A case becomes moot when a court ruling can have no practical impact or
cannot provide the parties with effective relief.’ ” (In re Stephon L. (2010) 181
Cal.App.4th 1227, 1231.) In this case, our review can have a practical impact on the trial
court’s directive to the Department and can provide relief in that regard if we determine
(as we do) the trial court erred. We thus consider the merits of the appeal.
II
Proposition 57 Does Not Mandate In-Person Parole Consideration Hearings
Petitioner argues the constitutional term “parole consideration” in section 32,
subdivision (a)(1) incorporates the preexisting procedures specified in statutes and
regulations pertaining to parole consideration for other categories of prisoners and thus
mandates “a live parole hearing before at least one parole commissioner, not a paper
review by a single deputy commissioner” (bolding and underlining omitted). (Citing Cal.
Code Regs., tit. 15, §§ 2265-2275, 2300-2310, 2400-2411, 2420-2429.1, 2430-2439.1,
2440-2446.) “The appropriate assumption[, he asserts,] is that the electors were aware of
the procedures applicable to offenders already eligible for parole, and incorporated those
2 The Department’s unopposed motion for judicial notice is granted.
7
procedures into Proposition 57.” Petitioner further believes the Proposition 57 Voter
Information Guide (guide) supports his position because it “explained the typical parole
process in California” as the Board conducting a parole consideration hearing. The only
logical inference, in petitioner’s view, is that “the voters’ intent was to apply the standard
parole consideration process in the Proposition 57 parole context.”
The Department does not address the foregoing argument directly in its reply
brief. In its opening and reply briefs, the Department instead argues determinately
sentenced nonviolent prisoners subject to Proposition 57 are not entitled to an in-person
hearing under Penal Code section 3041.5 because the statute applies only to “inmates
serving indeterminate sentences and those serving lengthy sentences who qualify for
youth offender or elderly parole.” The Department believes Proposition 57’s plain
language vests it with the obligation and authority to create a parole process for eligible
prisoners and it has wide discretion to promulgate an independent regulatory scheme to
implement that process.
We conclude Proposition 57 neither requires nor impliedly incorporates an in-
person hearing requirement, and the Department acted within its delegated authority
under section 32, subdivision (b) when it adopted the parole regulations, which do not
provide for an in-person hearing.
A
Standard Of Review And Principles Of Statutory Interpretation
“To determine whether the regulation here is consistent with the constitutional
provisions enacted by Proposition 57, we must interpret the constitutional provisions
themselves. Our ‘primary concern’ in construing a constitutional provision enacted
through voter initiative is ‘giving effect to the intended purpose of the provisions at
issue.’ [Citation.] And, ‘[i]n interpreting a voter initiative . . . , we apply the same
principles that govern statutory construction.’ [Citation.] In doing so, we look to the text
of the constitutional provision at issue and, as appropriate, extrinsic sources such as an
8
initiative’s ballot materials.” (In re Gadlin, supra, 10 Cal.5th at pp. 926-927.)
“In undertaking this analysis, we ask whether the regulation is ‘ “consistent and
not in conflict with” ’ the constitutional provision that authorizes it [citation] and whether
the regulation is reasonably necessary to effectuate the purpose of the authorizing law
[citations]. Our task ‘ “ ‘is to decide whether the [agency] reasonably interpreted the
legislative mandate.’ [Citation.]” ’ [Citation.] In doing so, we presume the validity of
the regulation [citation]; the burden lies with the party challenging the regulation to show
its invalidity [citation].” (In re Mohammad (2022) 12 Cal.5th 518, 529.)
B
Proposition 57 Did Not Incorporate An In-Person Hearing Requirement
1
The Ordinary Meaning Of “Parole Consideration” Is To Give
Careful Thought And Deliberation To A Prisoner’s Parole Suitability
We agree with the Kavanaugh court’s interpretation of “parole consideration” in
section 32, subdivision (a)(1). 3 As in Kavanaugh, “[t]he parties have not directed us to
any constitutional or statutory definitions for the term ‘parole consideration,’ and we are
aware of none based on our own research.” (In re Kavanaugh, supra, 61 Cal.App.5th at
p. 345.) “In the absence of such definitions, we presume the words were intended to be
understood ‘ “in [their] ordinary sense and, consequently, we may refer to [those words’]
dictionary definition[s] to ascertain [their] ordinary, usual meaning.” ’ [Citations.]
“Webster’s dictionary defines the term ‘consideration,’ as relevant here, to mean
‘the act of regarding or weighing carefully.’ [Citation.] Similarly, the online Oxford
3 In Kavanaugh, the court considered whether “section 32’s guarantee of parole
consideration for eligible felons includes an implicit promise that such felons will receive
the assistance of legal counsel during the parole process, as well as in-person parole
hearings and multimember parole panels.” (In re Kavanaugh, supra, 61 Cal.App.5th at
p. 344.)
9
English Dictionary defines ‘consideration’ to mean ‘[t]he keeping of a subject before the
mind; attentive thought, reflection, meditation.’ [Citation.] The American Heritage
Dictionary gives ‘consideration’ an analogous meaning, defining it as ‘[c]areful thought;
deliberation.’ [Citation.] Collectively, these definitions indicate that ‘parole
consideration’ refers to the giving of careful thought and deliberation to a person’s parole
suitability.” (In re Kavanaugh, supra, 61 Cal.App.5th at pp. 345-346.)
2
The Term “Parole Consideration” Is Not Susceptible To Petitioner’s Interpretation
Petitioner asserts we should ascribe to “parole consideration” its ordinary meaning
while taking into account “related provisions and the structure of the relevant statutory
and constitutional scheme.” (Citing California Cannabis Coalition v. City of Upland
(2017) 3 Cal.5th 924, 933.) In petitioner’s view, the term incorporates an in-person
hearing requirement because, “under statutory and regulatory law in effect at the time
Proposition 57 was passed, parole consideration occurred at a live hearing before a panel
consisting of at least one commissioner.” He asserts the “[e]lectors are presumed to be
aware of existing statutory and regulatory law, and thus electors voting on Proposition 57
are presumed to have had that same understanding of what parole consideration means.”
We note several problems with petitioner’s argument.
First, none of the statutes or regulations relied upon by petitioner define “parole
consideration.” The statutes and regulations instead identify the procedural and
substantive requirements pertinent to parole proceedings for different categories of
prisoners. Indeed, most of the titles of the articles in chapter 3 of division 2 of title 15 of
the California Code of Regulations when Proposition 57 passed were titled “parole
consideration procedures,” “parole consideration criteria and guidelines,” and “parole
consideration hearings” as to different categories of prisoners. (Capitalization omitted.)
None of the articles were titled simply “parole consideration” when Proposition 57
passed. “Had the drafters of Proposition 57, and by extension the voters, intended to
10
[require “a live parole hearing before at least one parole commissioner” (bolding and
underlining omitted), as petitioner asserts], it would have been a simple matter to say so
explicitly.” (In re Gadlin, supra, 10 Cal.5th at p. 935.)
Second, if we presume the voters knew existing law when voting on Proposition
57, we must presume the voters were aware that, when they voted, Penal Code
section 3041.5’s hearing requirements were inapplicable to determinately sentenced
prisoners. 4 (In re Jackson (1985) 39 Cal.3d 464, 468 [Pen. Code, § 3040 et seq. “apply
to all inmates not serving a determinate sentence”].) Nothing in Proposition 57 informed
the voters that passage of the proposition would change existing law (other than as
expressly stated in the proposition) or expand the application of Penal Code section 3040
et seq. to determinately sentenced prisoners. Instead, Proposition 57 informed the voters
the Department would be tasked with adopting regulations in furtherance of section 32,
which is consistent with the Department’s established history of adopting and
implementing regulations pertaining to parole consideration. (See Cal. Code Regs., tit.
15, div. 2, ch. 3.)
Third, to determine whether the voters intended to incorporate Penal Code
section 3041.5 into Proposition 57 proceedings, we must consider and analyze the statute
as a whole and not only the favorable cherry-picked portions of the statute upon which
petitioner relies. In that regard, the in-person hearing requirement in Penal Code
section 3041.5 is but one of the statute’s requirements. The statute further requires that,
among other things, if the Board denies parole, it shall schedule the next hearing for a
4 Penal Code section 3041.5, subdivision (a) imposes various requirements “[a]t all
hearings for the purpose of reviewing an inmate’s parole suitability, or the setting,
postponing, or rescinding of parole, with the exception of en banc review of tie votes.”
One of those requirements is that “[t]he inmate shall be permitted to be present, to ask
and answer questions, and to speak on his or her own behalf.” (Pen. Code, § 3041.5,
subd. (a)(2).)
11
date between three and 15 years into the future depending on the enumerated criteria.
(Pen. Code, § 3041.5, subd. (b)(3)(A)-(C).) Imposing such a lengthy time frame on
subsequent parole consideration hearings for determinately sentenced nonviolent
prisoners would undermine the voters’ intent to avoid the indiscriminate release of
prisoners by federal court order. (§ 32, subd. (a); Voter Information Guide, Gen. Elec.
(Nov. 8, 2016) text of Prop. 57, § 2, p. 141.) Expediency in conducting parole
consideration proceedings in contrast would further the voters’ intent. To that end, and in
contrast to Penal Code section 3041.5, the parole regulations provide that the eligibility
reviews for prisoners subject to Proposition 57 shall be conducted annually “until the
inmate is released from custody or is no longer eligible for parole consideration . . . .”
(Cal. Code Regs., tit. 15, §§ 3492, subd. (b), 2449.4, subd. (h).) Petitioner cannot divorce
the in-person hearing requirement in Penal Code section 3041.5 from the remainder of
the requirements in the statute, portions of which undermine the voters’ intent in passing
Proposition 57.
Fourth, the guide does not support petitioner’s voter awareness argument. “The
ballot materials presented to the voters consisted of three sections: the official title and
summary prepared by the Attorney General, the analysis of the Legislative Analyst, and
the arguments in favor of and against the proposition (an argument in favor by the
proponents followed by a rebuttal by the opponents, and an argument against by the
opponents followed by a rebuttal by the proponents).” (In re Gadlin, supra, 10 Cal.5th at
p. 936.) Petitioner relies on the Legislative Analyst’s analysis, asserting the summary of
the “typical parole process in California” as the Board conducting “ ‘a parole
consideration hearing’ ” and statement the Board “would decide whether to release these
individuals” “suggest the voters’ intent was to apply the standard parole consideration
process in the Proposition 57 parole context.” We disagree.
“The analysis by the Legislative Analyst provided a broad description of the then-
existing sentencing and parole consideration scheme.” (In re Gadlin, supra, 10 Cal.5th at
12
p. 936.) The Legislative Analyst first distinguished between indeterminate and
determinate sentences and then, under the heading “parole consideration hearings”
(bolding and capitalization omitted), explained: “After an individual serves the minimum
number of years required for an indeterminate sentence, the [Board] conducts a parole
consideration hearing to determine whether the individual is ready to be released from
prison. For example, [the Board] would conduct such a hearing for an individual
sentenced to 25-years-to-life after the individual served 25 years in prison. If [the Board]
decides not to release the individual from prison, the [B]oard would conduct a subsequent
hearing in the future. Individuals who receive a determinate sentence do not need a
parole consideration hearing to be released from prison at the end of their sentence.
However, some of these individuals currently are eligible for parole consideration
hearings before they have served their entire sentence. For example, certain individuals
who have not been convicted of violent felonies are currently eligible for parole
consideration after they have served half of their prison sentence. This was one of
several measures put in place by a federal court to reduce the state’s prison population.”
(Voter Information Guide, Gen. Elec., supra, analysis of Prop. 57 by Legis. Analyst,
p. 54.) The federal court order noted by the Legislative Analyst in the background
section was the “February 2014 federal court order in Coleman/Plata known as
nonviolent second strike offender parole.” (In re Gadlin, at pp. 936-937.)
The Legislative Analyst next described the changes to the parole system that
would result from the passage of Proposition 57. Under the heading “parole
consideration for nonviolent offenders” (bolding and capitalization omitted), it explained:
“The measure changes the State Constitution to make individuals who are convicted of
‘nonviolent felony’ offenses eligible for parole consideration after serving the full prison
term for their primary offense. As a result, [the Board] would decide whether to release
these individuals before they have served any additional time related to other crimes or
sentencing enhancements.
13
“The measure requires [the Department] to adopt regulations to implement these
changes. . . . As of September 2015, there were about 30,000 individuals in state prison
who would be affected by the parole consideration provisions of the measure. In
addition, about 7,500 of the individuals admitted to state prison each year would be
eligible for parole consideration under the measure. Individuals who would be affected
by the above changes currently serve about two years in prison before being considered
for parole and/or released. Under the measure, we estimate that these individuals would
serve around one and one-half years in prison before being considered for parole and/or
released.” (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 57 by Legis.
Analyst, p. 56.)
Finally, the Legislative Analyst considered the anticipated fiscal effects of the
initiative “[b]ased on recent [Board] experience with parole consideration for certain
nonviolent offenders,” pursuant to the federal court order. (Voter Information Guide,
Gen. Elec., supra, analysis of Prop. 57 by Legis. Analyst, p. 56.) The Legislative Analyst
estimated “the ongoing fiscal impact of this provision would likely be state savings in the
tens of millions of dollars annually” but such savings “would be offset somewhat by
additional costs for [the Board] to conduct more parole considerations.” (Ibid.)
We agree with Kavanaugh that, while “[t]he Legislative Analyst’s analysis
obliquely references the parole consideration hearings that are provided to
indeterminately sentenced persons and the [nonviolent second strike offender] parole
consideration process,” “neither the analysis nor any other portion of the ballot materials
states that the parole consideration guaranteed by Proposition 57 would resemble either
of these processes, nor that it would resemble one of the processes to the exclusion of the
other.” (In re Kavanaugh, supra, 61 Cal.App.5th at p. 349.) We find nothing in the
14
guide indicating the voters intended to impliedly incorporate the then-existing parole
consideration procedures pertinent to indeterminately sentenced prisoners. 5
It is further significant that, although the Legislative Analyst discussed hearings
conducted under the then-existing parole consideration proceedings in the background
portion of the analysis, the word “hearing” is appreciably absent in the proposal
section of the analysis addressing the changes to the parole system that would result from
the passage of Proposition 57. Indeed, in the proposal section of the analysis, the
Legislative Analyst merely refers to “parole consideration,” in contrast to its discussion
of “parole consideration hearings” in the background portion of the analysis. (Voter
Information Guide, Gen. Elec., supra, analysis of Prop. 57 by Legis. Analyst, pp. 54, 56,
bolding, italics, and capitalization omitted.) As an additional contrast, in the proposal
section of the analysis, immediately following the parole consideration discussion, the
Legislative Analyst specifically addressed “juvenile transfer hearings,” regarding
Proposition 57’s changes pertinent to transfers of juveniles to adult court. (Voter
Information Guide, Gen. Elec., supra, analysis of Prop. 57 by Legis. Analyst, p. 56,
bolding, italics, and capitalization omitted.)
The Legislative Analyst thus used the word “hearing” purposefully and
deliberately in its analysis. The absence of the word in describing the parole
consideration proposed under Proposition 57 signals the Legislative Analyst’s
understanding that no hearing requirement would be imposed under Proposition 57. We
find no indication the Legislative Analyst intended to convey to the voters or that the
5 The statutes and regulations applicable to parole consideration for indeterminately
sentenced prisoners provide for the appointment of legal counsel for potential parolees,
in-person parole hearings, and multimember parole panels. (In re Kavanaugh, supra, 61
Cal.App.5th at p. 347.)
15
voters understood that Proposition 57 would require an in-person hearing in parole
consideration proceedings.
Petitioner attacks Kavanaugh, asserting there was no basis for the court suggesting
the voters intended to incorporate into Proposition 57 the nonviolent second strike
offender parole consideration procedures that did not require a live hearing. Petitioner
misapprehends the following excerpt of that court’s opinion: “Returning to the
presumption of voter awareness, it is untenable for us to conclude the voters were
somehow aware of the parole consideration process available to indeterminately
sentenced felons, yet inexplicably unaware of the [nonviolent second strike offender]
parole consideration process. It is equally untenable for us to conclude the voters
intended to replicate the former process, as opposed to the latter process -- or to adopt a
new process altogether -- given that the language of Proposition 57 evinces no such
intention. In light of this textual omission, we decline to infer through sheer speculation
that the voters who passed Proposition 57 intended to adopt the broad and complex
swathe of procedural requirements governing parole consideration for indeterminately
sentenced felons.” (In re Kavanaugh, supra, 61 Cal.App.5th at pp. 348-349.) The court
did not state or imply that the voters intended to incorporate into Proposition 57 the
nonviolent second strike offender parole consideration procedures; rather, the court
explained there was no basis for presuming the voters intended to incorporate the parole
consideration procedures applicable to either indeterminately sentenced prisoner
proceedings or nonviolent second strike offender proceedings. We thus find no merit in
petitioner’s attack on Kavanaugh.
McGhee also does not assist petitioner. (Citing In re McGhee (2019) 34
Cal.App.5th 902.) Petitioner asserts in a cursory sentence that the existing parole
regulations amount to a “preliminary screening process” by the Department, which was
rejected in McGhee, “because it is not considered by the Parole Board.” In the absence of
any further clarification or analysis as to how the parole consideration process under the
16
existing parole regulations amount to a preliminary screening process, we cannot analyze
the contention in any meaningful manner. We decline to make assumptions regarding the
underlying argument. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36
Cal.App.5th 142, 153 [we do not make arguments for the parties and may and do
disregard conclusory arguments failing to disclose a party’s reasoning in reaching the
conclusion he, she, they, or it asks us to adopt].)
Petitioner further relies on the McGhee court’s statement the guide “indicates
that Proposition 57 would provide the same type of hearing to individuals convicted of
nonviolent felonies,” as provided to indeterminately sentenced prisoners. (In re McGhee,
supra, 34 Cal.App.5th at p. 911.) The McGhee court, however, did not consider whether
Proposition 57 requires a hearing; the court instead considered the viability of a
regulation requiring the Department to conduct a prescreening of otherwise eligible
inmates before referring those inmates to the Board for parole consideration. (In re
McGhee, at p. 905.) “ ‘It is axiomatic that cases are not authority for propositions not
considered.’ ” (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.) We agree with
the Department that McGhee “concerns who must make parole consideration decisions;
not what procedures must be provided.”
Having considered and rejected petitioner’s arguments, we see no basis for finding
the term “parole consideration” ambiguous. The dictionary definition adopted by the
Kavanaugh court constitutes the plain meaning of the term; the term does not impliedly
incorporate any procedural requirements pertinent to other pre-existing parole
consideration proceedings.
3
The Parole Regulations Are In Harmony With Section 32 And
Reasonably Necessary To Effectuate The Purposes Of Proposition 57
We agree with Kavanaugh that “[w]hen the term ‘parole consideration’ is given
th[e] common and ordinary meaning [of ‘the giving of careful thought and deliberation to
17
a person’s parole suitability’], it is apparent the parole regulations are in harmony with
section 32.” (In re Kavanaugh, supra, 61 Cal.App.5th at p. 346.) “The parole
regulations require the referral of each eligible prisoner to the Board for a parole
assessment whereby a hearing officer reviews all relevant information and applies criteria
to determine whether the prisoner poses a risk of violence or significant criminal activity.
[Citations.] Depending on the outcome of the assessment, the hearing officer then
approves or denies parole release. [Citations.] In short, the Board affords parole
consideration to the prisoner when the hearing officer reviews the prisoner’s record and
weighs various factors bearing on the prisoner’s parole suitability in order to reach a
reasoned parole release decision.” (Ibid.)
We discern no conflict between the parole regulations at issue in this appeal and
section 32 and conclude the Department reasonably interpretated the legislative mandate
to promulgate regulations in furtherance of implementing section 32.
III
The “Paper Review” Process Does Not Violate Equal Protection Principles
“The Fourteenth Amendment to the United States Constitution and article I,
section 7 of the California Constitution guarantee all persons the equal protection of the
laws.” (People v. Edwards (2019) 34 Cal.App.5th 183, 195.) “The right to equal
protection of the law is violated when ‘the government . . . treat[s] a [similarly situated]
group of people unequally without some justification.’ ” (People v. Love (2020) 55
Cal.App.5th 273, 287.) “To succeed on an equal protection claim, [petitioner] must first
show that the state has adopted a classification that affects two or more similarly situated
groups in an unequal manner.” (Edwards, at p. 195.)
If a class of criminal defendants is similarly situated for purposes of the law
challenged to another class of defendants who are treated differently, but the law does not
involve a suspect class or a fundamental right, courts next look to determine whether
there is a “ ‘rational relationship between the disparity of treatment and some legitimate
18
governmental purpose.’ ” (People v. Turnage (2012) 55 Cal.4th 62, 74.) “This standard
of rationality does not depend upon whether lawmakers ever actually articulated the
purpose they sought to achieve. Nor must the underlying rationale be empirically
substantiated. [Citation.] While the realities of the subject matter cannot be completely
ignored [citation], a court may engage in ‘ “rational speculation” ’ as to the justifications
for the legislative choice [citation]. It is immaterial for rational basis review ‘whether or
not’ any such speculation has ‘a foundation in the record.’ ” (Id. at pp. 74-75.)
Petitioner believes the trial court correctly reasoned the parole regulations violate
equal protection principles if Proposition 57 does not incorporate Penal Code
section 3041.5’s in-person hearing requirement. Petitioner explains: “[T]he superior
court compared two classes of offenders serving the same primary term for the same
nonviolent offense: on one hand, a third striker serving an indeterminate term for a
nonviolent offense, and on the other hand a non-third striker serving the same primary
term for the same nonviolent offense. [Citation.] Both offenders would become eligible
for parole consideration at the same time (the completion of the primary term for the
nonviolent offense), but, under [the Department’s] interpretation of Proposition 57, only
the third striker would receive a live hearing, while the non-third striker would receive a
paper review.” Petitioner’s entire argument rests on the premise that “determinately and
indeterminately sentenced offenders are ‘similarly situated’ for purposes of
Proposition 57.”
The Department asserts inmates serving determinate sentences for nonviolent
felony offenses are not similarly situated to inmates serving life or long-term sentences
for serious and violent felony offenses because “[c]ourts have long held that inmates
convicted of different crimes are not similarly situated.” The Department further argues
that, even if petitioner’s similarly situated argument passes muster, a rational basis
supports the difference in treatment between the groups because, “given the severity of
their crimes and the need to preserve public safety, it is rational for the state to subject
19
inmates with life or long-term sentences to a parole hearing on the basis they require
closer examination by the Board.”
The flaw in petitioner’s argument is that he focuses on only one aspect of the
equal protection analysis. Even if determinately and indeterminately sentenced prisoners
are similarly situated for purposes of Proposition 57 as petitioner asserts (a contention we
need not and do not consider), the equal protection argument lacks merit because the
Department has shown a rational basis for treating the two classes of prisoners
differently.
Included in the record is the Department’s initial statement of reasons in support
of the regulations to be adopted or amended in compliance with section 32, dated April
19, 2019. Therein, the Department explained it had previously adopted regulations
pursuant to Proposition 57 to create “a process for determinately-sentenced nonviolent
offenders to be reviewed for parole after serving the full term of their primary offense.”
The regulations to be adopted and amended concerned regulations “necessary to
implement and interpret provisions of Proposition 57 and the court’s order in In re
Edwards[(2018) 26 Cal.App.5th 1181] by establishing a parole consideration process that
provides indeterminately-sentenced nonviolent offenders a mechanism to be considered
for parole upon serving the full term of their primary offense.”
The Department explained: “In establishing this process, the Department found it
necessary to consider both the previously established parole process for determinately-
sentenced nonviolent offenders as well as the current parole consideration process for
inmates sentenced to indeterminate terms of life with the possibility of parole.
Specifically, the increased length of potential incarceration and the severity of their
criminal histories warrant greater scrutiny for indeterminately-sentenced nonviolent
offenders, such as an in-person hearing before the Board that is recorded and transcribed,
comprehensive risk assessments by a forensic psychologist, appointment of counsel, and
interpreters present, if needed. Thus, these regulations establish a nonviolent parole
20
consideration process that in part mirrors the eligibility and public safety determinations
of the existing nonviolent parole process for determinately-sentenced inmates, while also
requiring a full parole consideration hearing similar to those currently conducted under
Penal Code sections 3040, et seq., for other life-term inmates.”
As the Department explained, indeterminately sentenced nonviolent offenders are
treated differently given the increased length of potential incarceration and the severity of
their criminal histories. Returning to petitioner’s “third striker” example, we note “[t]he
three strikes law [wa]s the Legislature’s attempt to address the threat to society posed by
the class of persons previously convicted of serious or violent felonies.” (People v.
Cooper (1996) 43 Cal.App.4th 815, 829.) A third-strike offender is a recidivist with two
or more prior violent or serious felony convictions. (Pen. Code, §§ 667, subds. (b)-(j),
1170.12.) “Violent and serious felony offenses differ from other offenses in many ways,
including the reasons and motives of the criminal, the outrage and harm to the victim, and
the potential for danger to the victim and society in general. Such differences warrant
different treatment.” (Cooper, at p. 829.)
There is thus a rational basis for requiring greater scrutiny in parole consideration
proceedings for indeterminately sentenced nonviolent offenders as compared to
determinately sentenced nonviolent offenders when considering public safety -- one of
the foundational purposes of Proposition 57. (§32, subd. (a) [provisions enacted “to
enhance public safety”].) The Department, in its expertise, has determined that such
greater scrutiny necessitates, among other requirements, an in-person hearing for
indeterminately sentenced nonviolent prisoners. Petitioner presents no argument to
challenge the Department’s rationale and we accordingly find no basis for concluding the
parole regulations violate equal protection.
21
IV
The “Paper Review” Process Does Not Violate Procedural Due Process
The Department asserts “[n]either state nor federal due process principles entitle
determinately-sentenced nonviolent offenders, like Bailey, to in-person parole hearings
when being considered for parole under Proposition 57.” Petitioner asserts “United
States Supreme Court precedent demonstrates procedural due process in this context
requires a live hearing” (bolding omitted) and an analysis of the pertinent factors favors
his position. The Kavanaugh court recently concluded Proposition 57’s procedures
specified in “the parole regulations do not violate the procedural due process rights of
prisoners.” (In re Kavanaugh, supra, 61 Cal.App.5th at p. 359.) We agree with
Kavanaugh.
Although the Board’s discretion in making parole release decisions is broad and
has been described as “ ‘almost unlimited,’ ” that discretion is subject to a prisoner’s right
to procedural due process. (In re Kavanaugh, supra, 61 Cal.App.5th at p. 352.) “The
fundamental requirement of due process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’ ” (Mathews v. Eldridge (1976) 424 U.S. 319, 333
[47 L.Ed.2d 18, 32].) In discerning what is meaningful as to time and manner, we are
mindful that “due process is flexible and calls for such procedural protections as the
particular situation demands.” (Morrissey v. Brewer (1972) 408 U.S. 471, 481
[33 L.Ed.2d 484, 494].)
To evaluate what procedural protections are due under the federal and state due
process clauses, “we consider the following factors: ‘(1) the private interest that will be
affected by the official action, (2) the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards, (3) the dignitary interest in informing individuals of the nature,
grounds and consequences of the action and in enabling them to present their side of the
story before a responsible governmental official, and (4) the governmental interest,
22
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.’ ” (In re Kavanaugh, supra,
61 Cal.App.5th at pp. 352-353, fn. omitted; Today’s Fresh Start, Inc. v. Los Angeles
County Office of Education (2013) 57 Cal.4th 197, 213 [“With a minor modification,
[i.e., the addition of the dignitary interest factor], we have adopted the [federal] balancing
test as the default framework for analyzing challenges to the sufficiency of proceedings
under our own due process clause”].)
As the Kavanaugh court explained, as to the first factor, “in a parole consideration
proceeding, the private interest at stake is not a prisoner’s interest in his or her
conditional liberty; rather, it is the mere expectancy of his or her conditional liberty -- a
‘limited liberty interest.’ ” (In re Kavanaugh, supra, 61 Cal.App.5th at p. 355.)
Petitioner asserts “the California Supreme Court has not used” terminology
characterizing a parole eligible inmate’s liberty interest as “limited” and believes “[t]he
liberty interest in this case is the same as that previously recognized by the California
Supreme Court’s parole cases.” Petitioner relies on In re Lawrence, in which our
Supreme Court discussed an “inmate’s due process liberty interest in parole.” (Citing In
re Lawrence (2008) 44 Cal.4th 1181, 1191.)
We discern no credible quibble with the term “limited liberty interest.” The term
simply means “ ‘ “[a]n incarcerated individual for whom a parole date has not been set
possesses less of an expectation of liberty than one for whom a release date previously
has been established by the Board,” ’ ” as the Kavanaugh court explained. (In re
Kavanaugh, supra, 61 Cal.App.5th at p. 355.) The foregoing explanation hails from a
California Supreme Court decision -- In re Rosenkrantz (2002) 29 Cal.4th 616, 656. The
use of the term “limited liberty interest” is thus consistent with established California
Supreme Court precedent.
Turning to the second factor -- the risk of erroneous deprivation of the interest
through the procedures used -- Kavanaugh explained a prisoner: receives notice of the
23
referral to the Board and information about the parole process (In re Kavanaugh, supra,
61 Cal.App.5th at p. 355); may submit a written statement to the Board discussing
mitigating factors, addressing any aggravating factors, and highlighting the prisoner’s
rehabilitation in prison (id. at pp. 355-356); and may request review of an adverse parole
decision (id. at p. 356). The hearing officer is required to: “consider the prisoner’s
statement, in addition to all other relevant and available information pertaining to the
prisoner” (id.at p. 355); and “issue a written parole decision, supported by a statement of
reasons” to prevent arbitrary and unsupported parole denials and provide the prisoner
with the information necessary to determine whether to challenge the denial (id. at
p. 356). Further, if the prisoner seeks review of an adverse parole decision: the prisoner
“has an opportunity to articulate why . . . the initial parole decision was incorrect and
provide additional information not available to the hearing officer when the initial parole
decision was made”; and “[t]he review is conducted by a hearing officer who was not
involved in the initial parole decision.” (Ibid.) The Kavanaugh court concluded that,
“[c]ollectively, these procedural requirements ensure that a prisoner eligible for parole
has a reasonable opportunity to inform the Board of any considerations weighing in favor
of . . . parole suitability.” (Ibid.) We agree.
Petitioner does not address the Kavanaugh court’s analysis of this factor. He
instead relies heavily on Kelly for the proposition that written statements are insufficient
to mitigate the risk of erroneous deprivation and to protect a prisoner’s liberty interest in
parole suitability determinations. (Citing Goldberg v. Kelly (1970) 397 U.S. 254 [25
L.Ed.2d 287].) We are not persuaded.
In Kelly, the United States Supreme Court considered “whether a State that
terminates public assistance payments to a particular recipient without affording him the
opportunity for an evidentiary hearing prior to termination denies the recipient procedural
due process in violation of the Due Process Clause of the Fourteenth Amendment.”
(Goldberg v. Kelly, supra, 397 U.S. at p. 255 [25 L.Ed.2d at p. 292].) The court
24
concluded an evidentiary hearing was required under such circumstances, where a
recipient could personally appear to present evidence and confront or cross-examine
adverse witnesses. (Id. at pp. 267-268, 270 [25 L.Ed.2d at pp. 299, 300].) Kelly is
distinguishable because “the crucial factor in th[at] context -- a factor not present in the
case of the blacklisted government contractor, the discharged government employee, the
taxpayer denied a tax exemption, or virtually anyone else whose governmental
entitlements are ended -- [wa]s that termination of aid pending resolution of a
controversy over eligibility may deprive an eligible recipient of the very means by which
to live while he waits.” (Id. at p. 264 [25 L.Ed.2d at p. 297].) A prisoner’s entitlement to
be considered for parole is vastly different from a person’s protected liberty interest in
welfare benefits presently enjoyed.
We also agree with Kavanaugh’s analysis of the governmental interest factor. As
Kavanaugh noted: “We agree hearings ‘may be useful in resolving conflicting
information and in the introduction of subjective factors into the decision making process
that might otherwise not be considered; it thereby may often tend to enhance the accuracy
and reliability of the exclusion decision.’ [Citation.] The prisoner’s body language may
assist the parole decision maker ‘in assessing signs of remorse and the effect of age’
[citation] -- factors that may in turn impact the parole suitability decision. [Citation.]
‘And even in cases in which [in-person] participation [at a parole hearing] is unlikely to
affect the outcome of the [parole] decision, it nevertheless promotes important dignitary
values that underlie due process.’ ” (In re Kavanaugh, supra, 61 Cal.App.5th at pp. 357-
358.) “[T]hese potential benefits cannot[, however,] be considered in isolation without
accounting for the weighty fiscal and administrative burdens that in-person parole
hearings would impose on the government.” (Id. at p. 358.)
The Kavanaugh court explained that, “[b]ased on the costs associated with in-
person parole hearings for indeterminately sentenced prisoners,” it is estimated that “it
would cost the Board tens of millions of dollars annually to conduct in-person parole
25
hearings for all eligible determinately sentenced nonviolent prisoners.” (In re
Kavanaugh, supra, 61 Cal.App.5th at p. 358.) The court took judicial notice of
administrative notices and statements indicating “that nearly 30,000 inmates were
screened for early parole consideration after voters passed Proposition 57” and noted “the
Governor allocated $8.2 million in his proposed annual budget for the implementation of
the early parole consideration process for indeterminately sentenced felons.” (Id. at
p. 358, fns. 17 & 18.) Additionally, it is reasonable to “infer in-person parole hearings
would consume substantially more time than a documentary review of a prisoner’s parole
suitability -- both to prepare for the in-person hearing and to conduct the in-person
hearing.” (Id. at p. 358.) The significant fiscal and administrative burdens associated
with in-person hearings outweigh the usefulness of in-person hearings when considering
the subjective analysis in parole release decisions “is not so readily adapted to procedural
due process safeguards as are decisions that turn on specific factual questions . . . .”
(People v. Ramirez (1979) 25 Cal.3d 260, 273.)
Petitioner asserts the burden in this instance would be lessened by the trial court’s
limitation of in-person parole hearings to only those “nonviolent offenders who are not
granted release based on an initial paper review, and who then request a hearing.”
Petitioner cites no evidence, however, estimating the financial cost associated with the
trial court’s proposal or estimating the cost savings that would be achieved by
implementing that proposal in comparison to providing in-person hearings for all
Proposition 57 parole consideration hearings. “Appellate review is generally limited to
matters contained in the record. Factual matters that are not part of the appellate record
will not be considered on appeal and such matters should not be referred to in the briefs.”
(Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.)
Petitioner further argues that “as a general matter, fiscal and administrative
burdens are not significant enough to justify depriving due process of law.” (Citing
People v. DeLeon (2017) 3 Cal.5th 640, 658.) DeLeon has no application to the analysis
26
before us. In that case, our Supreme Court considered whether the transfer of jurisdiction
over most parole revocation hearings from the Board to the superior courts rendered a
preliminary hearing unnecessary. (Id. at p. 644.) Our Supreme Court explained the
United States Supreme Court had previously found that “parolees facing revocation are
constitutionally entitled to . . . a prompt preliminary hearing after arrest to determine
whether there is probable cause to believe a parole violation has occurred.” (Ibid.) The
court held that, even though preliminary hearings may burden the superior courts, the
“legitimate institutional concern . . . cannot justify depriving a parolee of his right to due
process of law.” (Id. at p. 658.) DeLeon is simply inapposite to the circumstances
presented here. We do not read the case to stand for the general proposition advanced by
petitioner.
Finally, we agree with Kavanaugh that the parole regulations “promote the
dignitary values of the persons seeking parole release.” (In re Kavanaugh, supra, 61
Cal.App.5th at p. 359.) That is because “the parole regulations permit prisoners to make
their case for parole release in ways other than in-person parole hearings,” as explained
ante. (Ibid.)
As in Kavanaugh: “Balancing all these factors, we conclude the parole
regulations do not violate the procedural due process rights of [determinately sentenced
nonviolent] prisoners. We acknowledge in-person parole hearings might increase the
accuracy of some parole release decisions and promote the dignity interests of prisoners.
However, in our view, those potential benefits simply do not prevail over all the other
factors weighing against a new constitutionally based right to annual, in-person parole
hearings. We are particularly cognizant of the fact that prisoners have limited liberty
interests in parole release proceedings, as well as the obvious and considerable fiscal and
administrative burdens flowing from in-person parole hearings. And while the parole
regulations may not assure error-free parole decisions in all cases, they contain numerous
features that reduce the risk of arbitrary parole decisions. Many of those same features
27
promote prisoners’ dignitary interests. Considering all these factors, we conclude the
parole regulations afford prisoners reasonable notice and a reasonable opportunity to be
heard. That is all due process requires.” (In re Kavanaugh, supra, 61 Cal.App.5th at
p. 359.)
We do not find the United States Supreme Court cases relied upon by petitioner to
require a contrary conclusion. Petitioner asserts the United States Supreme Court in
Greenholtz and Swarthout mandated an in-person hearing requirement in circumstances
such as those presented by Proposition 57. (Citing Greenholtz v. Inmates of Nebraska
Penal and Correctional Complex (1979) 442 U.S. 1 [60 L.Ed.2d 668] & Swarthout v.
Cooke (2011) 562 U.S. 216 [178 L.Ed.2d 732].) He believes “taken together the two
cases make clear that a live hearing is the minimum process required to comply with
procedural due process.” In his view, “[t]hat conclusion follows from 1) the fact that
Greenholtz involved a parole procedure where inmates could appear in person and speak
to the Parole Board [citation], and 2) Swarthout’s clear statement that ‘the minimum
procedures adequate for due process protection’ are ‘those set forth in Greenholtz.’ ”
Petitioner is mistaken.
The question in Greenholtz was whether the Nebraska parole determination
procedures met the constitutional due process requirements. (Greenholtz v. Inmates of
Nebraska Penal and Correctional Complex, supra, 442 U.S. at p. 3 [60 L.Ed.2d at
p. 673].) More specifically, however, “since the Nebraska Parole Board provide[d] at
least one and often two hearings every year to each eligible inmate, [the court] need[ed]
only consider whether the additional procedures mandated by the Court of Appeals
[we]re required.” (Id. at p. 14 [60 L.Ed.2d at p. 680].) The United States Supreme Court
concluded: “The Nebraska procedure affords an opportunity to be heard, and when
parole is denied it informs the inmate in what respects he falls short of qualifying for
parole; this affords the process that is due under these circumstances. The Constitution
does not require more.” (Id. at p. 16 [60 L.Ed.2d at p. 681].)
28
In Swarthout, the United States Supreme Court reiterated that when a state
creates a liberty interest in receiving parole, such as that created by California law,
“the Due Process Clause requires fair procedures for its vindication.” (Swarthout v.
Cooke, supra, 562 U.S. at p. 220 [178 L.Ed.2d at p. 736].) “In the context of parole,
[however,] the procedures required are minimal.” (Ibid.) The United States Supreme
Court explained: “In Greenholtz, we found that a prisoner subject to a parole statute
similar to California’s received adequate process when he was allowed an opportunity to
be heard and was provided a statement of the reasons why parole was denied.
[Citation.] ‘The Constitution,’ we held, ‘does not require more.’ ” (Ibid.) The United
States Supreme Court concluded the procedures at issue before it provided “at least this
amount of process” because the prisoners “were allowed to speak at their parole hearings
and to contest the evidence against them, were afforded access to their records in
advance, and were notified as to the reasons why parole was denied.” (Ibid.)
From Greenholtz and Swarthout we glean the following: (1) when a state creates a
liberty interest in receiving parole, the state must provide prisoners with the minimal due
process protections of an opportunity to be heard and a statement of reasons if parole is
denied; and (2) if a state provides a prisoner with an in-person parole suitability hearing
where the prisoner may speak, the procedure adequately provides an opportunity to be
heard. Neither Greenholtz nor Swarthout, however, stands for the proposition “[t]hat live
opportunity to speak to the Parole Board . . . is part of the ‘minimum’ necessary
procedure” to satisfy procedural due process, as petitioner asserts. That is because the
United States Supreme Court did not in either Greenholtz or Swarthout consider whether
an in-person hearing is required to provide an inmate with an opportunity to be heard.
As explained ante, “ ‘[i]t is axiomatic that cases are not authority for propositions not
considered.’ ” (In re Marriage of Cornejo, supra, 13 Cal.4th at p. 388.)
We also do not find pertinent the United States Supreme Court’s statement in
Swarthout that “the minimum procedures adequate for due-process protection of [a
29
prisoner’s liberty interest in receiving parole] are those set forth in Greenholtz.”
(Swarthout v. Cooke, supra, 562 U.S. at p. 221 [178 L.Ed.2d at p. 737].) When read in
context with the preceding paragraph in that case and considering the facts of Greenholtz,
it is clear the United States Supreme Court referred to the minimum procedures of
providing an opportunity to be heard and a statement of reasons if parole is denied. As
already explained, nothing in Greenholtz or Swarthout states an opportunity to be heard
requires an in-person hearing. Further, as noted in Kavanaugh, “numerous lower federal
courts have found the parole regulations do not violate prisoners’ procedural due process
rights under the federal Constitution” and “there is federal appellate authority standing
for the proposition that in-person parole hearings are not guaranteed by the federal due
process clause.” (In re Kavanaugh, supra, 61 Cal.App.5th at p. 359, fn. 19.)
Finally, petitioner asserts “[a]t least one other procedural due process case from
the prison context strongly favors [his] position.” (Citing Wolff v. McDonnell (1974) 418
U.S. 539 [41 L.Ed.2d 935].) In Wolff, the United States Supreme Court “held that due
process protected . . . inmates from the arbitrary loss of the statutory right to [good-time]
credits because they were provided subject only to good behavior.” (Greenholtz v.
Inmates of Nebraska Penal and Correctional Complex, supra, 442 U.S. at p. 12 [60
L.Ed.2d at p. 678].) The court explained, “[s]ince prisoners in Nebraska can only lose
good-time credits if they are guilty of serious misconduct, the determination of whether
such behavior has occurred becomes critical, and the minimum requirements of
procedural due process appropriate for the circumstances must be observed.” (Wolff, at
p. 558 [41 L.Ed.2d at p. 952].) As such, the United States Supreme Court discussed the
minimum due process procedures required under such circumstances, including “advance
written notice of the claimed violation[,] a written statement of the factfinders as to the
evidence relied upon and the reasons for the disciplinary action taken,” and an
opportunity “to call witnesses and present documentary evidence in his defense when
30
permitting him to do so will not be unduly hazardous to institutional safety or
correctional goals.” (Id. at pp. 563, 566 [41 L.Ed.2d at pp. 955, 956].)
As the United States Supreme Court explained in Greenholtz, however,
“[p]rocedures designed to elicit specific facts, such as those required in . . . Wolff, are not
necessarily appropriate to a [state’s] parole determination. [Citations.] Merely because a
statutory expectation exists cannot mean that in addition to the full panoply of due
process required to convict and confine there must also be repeated, adversary hearings in
order to continue the confinement.” (Greenholtz v. Inmates of Nebraska Penal and
Correctional Complex, supra, 442 U.S. at p. 14 [60 L.Ed.2d at pp. 679-680].) In other
words, the circumstances pertaining to the loss of statutory good-time credits in Wolff and
parole suitability determinations are not the same and do not require the same procedural
safeguards to meet due process protections.
For the foregoing reasons, we conclude petitioner’s procedural due process
challenge is without merit.
DISPOSITION
The order granting petitioner’s petitions for writ of habeas corpus is reversed.
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Hoch, J.
31