In re Morrall

125 Cal.Rptr.2d 391

102 Cal.App.4th 280

In re Norman G. MORRALL on Habeas Corpus.

No. C040322.

Court of Appeal, Third District.

September 23, 2002.

As Modified on Denial of Rehearing October 10, 2002.

As Modified October 16, 2002.

Review Dismissed Feb. 11, 2003.^*

Latham & Watkins, Stephan E. Klein and Kyra G. Busby, for Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, Susan Duncan Lee and Allen R. Crown, Deputy Attorneys General, for Respondent.

SCOTLAND, P.J.

Pursuant to the authority conferred upon him by article V, section 8, subdivision (b) of our state Constitution, and by Penal Code section 3041.2, Governor Davis reversed a decision of the Board of Prison Terms finding that petitioner Norman G. Morrall is suitable for parole. After unsuccessfully seeking relief in the superior court, Morrall filed a petition for a writ of habeas corpus in this court. We issued an order to show cause to consider his challenges to the Governor's action.

Morrall contends (1) the Governor has unilaterally dismantled the parole system by adopting, contrary to law, a policy against the parole of persons convicted of murder, (2) the Governor's decision is not supported by any evidence, and (3) the decision violates principles of due process and the prohibition against the ex post facto application of penal laws.

In response, the Attorney General asserts that the final decision whether a convicted murderer should be released on parole is committed exclusively to the Governor, and the constitutional separation of powers doctrine precludes judicial review of the merits of the Governor's decision.

For reasons to follow, we conclude that a blanket policy of the denial of parole for convicted murderers would be unlawful and that such persons are entitled to individual consideration. But political rhetoric does not establish such a blanket policy. In the absence of specific evidence of a refusal to perform a legal duty, we rely, as we must, on the Governor's fidelity in the performance of the duties of his office. The Governor's decisions with respect to parole are subject to judicial review on the merits, but the scope of this review is narrow. A court may not interfere with the Governor's exercise of discretion. Thus, to establish cause for relief, a prospective parolee must demonstrate that there is no basis in fact for the decision, i.e., it is not supported by any evidence. On the facts of this case, we cannot find that the Governor's action had no basis in fact. The Governor's review of the Board of Prison Terms' determination did not violate principles of due process and did not violate the prohibition against ex post facto laws. Accordingly, we shall deny the petition for a writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

Morrall and the woman he later murdered were married and had two children. After almost 20 years of marriage, an action to dissolve the union was commenced in 1979. The proceedings were apparently acrimonious and, in 1981, Morrall killed his estranged wife.

The victim was killed in the doorway of her home. Morrall says he went there intending to ask for an extension of visitation with his son. He took with him a loaded firearm and claims that he intended to wave the gun in the victim's face to make her stop talking or shouting at him. When the conversation became heated, Morrall shot the victim seven times, wounding her in the neck, chest, head, thoracic area, and right hand. The neck wound was inflicted from very close range and reportedly was a contact wound.

Although it was too late to save her life, Morrall drove the victim to the hospital and admitted that he shot her. He was convicted of second degree murder and sentenced to state prison for 15 years to life, with a 2 year enhancement for using a firearm. He was received by the Department of Corrections on July 21, 1983.

In 1993, a panel of the Board of Prison Terms (the Board) found that Morrall was suitable for parole. Following various further proceedings, that decision was rescinded by the Board. Following hearings in 1997 and in 1998, Morrall was found unsuitable for parole.

In 1999, a panel of the Board again found that Morrall was suitable for parole. That determination was referred to the Board's decision review unit which upheld the decision with the imposition of a special condition that Morrall would be required to attend anger control and/or stress management programs upon his release from prison. However, on September 21, 1999, Governor Davis reversed the Board's decision.

In 2001, a panel of the Board found that Morrall was suitable for parole. On September 5, 2001, Governor Davis reversed that decision.

After the Governor's decision in 1999 to reverse the Board's determination that Morrall was suitable for parole, Morrall sought relief by petition for writ of habeas corpus in the Sacramento County Superior Court, which denied the petition as untimely. On Morrall's petition for a writ of habeas corpus in this court, we issued an order to show cause returnable before the Sacramento County Superior Court. After the Governor's second reversal in September 2001 of the Board's determination that Morrall was suitable for parole, the superior court heard and denied Morrall's petition on the merits. Morrall then commenced this proceeding in habeas corpus.¹

DISCUSSION

I

To address Morrall's challenges to the Governor's action, we must begin with an overview of California's parole system.

A

"The word `parole' was originally a military term signifying the word of honor or promise of a prisoner of war that if he be released, he will comply with certain conditions, such as to refrain from bearing arms against his captors. As used in penology, the term has come to signify the release of a prisoner prior to expiration of his term of imprisonment conditioned upon his continuing good behavior during the remainder of the term." (In re Peterson (1939) 14 Cal.2d 82, 85, 92 P.2d 890.) A prisoner released on parole is not discharged; he is merely permitted to serve the remainder of his term outside rather than within prison walls. (People v. Denne (1956) 141 Cal.App.2d 499, 508, 297 P.2d 451.) Until discharged from parole, he remains under the custody of the Department of Corrections and is subject to being taken back within the enclosure of the prison. (Pen.Code, §§ 3000, 3056.)

A person convicted of crime has no inherent or constitutional right to conditional release before the expiration of a valid sentence. (Greenholtz v Nebraska Penal Inmates (1979) 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668, 675.) Therefore, in establishing a parole system, a state may be as specific or general in defining the conditions for release and the factors to be considered as it believes will serve the public interest. (Id. at p. 8, 99 S.Ct. 2100, 60 L.Ed.2d at pp. 675-676.)

"It is thus not surprising that there is no prescribed or defined combination of facts which, if shown, would mandate release on parole.... In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community. This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate's release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice. The entire inquiry is, in a sense, an `equity type judgment that cannot always be articulated in traditional findings." (Greenholtz v. Nebraska Penal Inmates, supra, 442 U.S. at p. 8, fn. omitted, 99 S.Ct. 2100, 60 L.Ed.2d at p. 676; accord, In re Schoengarth (1967) 66 Cal.2d 295, 300, 57 Cal.Rptr. 600, 425 P.2d 200.)

"While a prisoner eligible for parole has the right to apply therefor and to have his application duly considered, he has no right to a parole at any fixed time, or at all...." (In re Schoengarth, supra, 66 Cal.2d at p. 300, 57 Cal.Rptr. 600, 425 P.2d 200.) In considering whether parole should be granted, the parole authority is not guided solely by the prisoner's good conduct while he was incarcerated, but must consider a wide variety of factors, including the nature of his offense, his age, his prior associations, his habits, inclinations and traits of character, the probability of his reformation, and the interests of public security. (Ibid.) In this respect, the discretion of the parole authority has been described as "great" and "almost unlimited." (In re Powell (1988) 45 Cal.3d 894, 902, 248 Cal.Rptr. 431, 755 P.2d 881.)

By its nature, the determination whether a prisoner should be released on parole is generally regarded as an executive branch decision. (Greenholtz v. Nebraska Penal Inmates, supra, 442 U.S. at p. 7, 99 S.Ct. 2100, 60 L.Ed.2d at p. 675; accord, In re Lee (1918) 177 Cal. 690, 693-695, 171 P. 958.) The decision, and the discretion implicit in it, are expressly committed to the executive branch. (Pen.Code, § 3040 et seq.; Cal. Const., art. V, § 8.) It is not a judicial decision. (Greenholtz v. Nebraska Penal Inmates, supra, 442 U.S. at p. 7, 99 S.Ct. 2100, 60 L.Ed.2d at p. 675; In re Minnis (1972) 7 Cal.3d 639, 650, 102 Cal. Rptr. 749, 498 P.2d 997; In re Fain (1976) 65 Cal.App.3d 376, 389, 135 Cal.Rptr. 543; Fleischer v. Adult Authority (1962) 202 Cal.App.2d 44, 47-48, 20 Cal.Rptr. 603.)

B

Prior to 1977, California, like many other states, had an indeterminate sentencing law. (See Way v. Superior Court (1977) 74 Cal.App.3d 165, 168-169, 141 Cal.Rptr. 383.) A sentencing court would not select a fixed term, but would impose an indeterminate term, generally expressed as a range such as five years to life. (People v. Morse ...