Opinion
As Modified on Denial of Rehearing June 6, 1973.
Opinion on pages 319-331 omitted.
HEARING GRANTED
For Opinion on Hearing, see 115 Cal.Rptr. 344, 524 P.2d 816.
[108 Cal.Rptr. 94]Paul L. Forman, Chico, for petitioner.
Evelle J. Younger, Atty. Gen. by James T. McNally, and Anthony Dicce, Deputy Attys. Gen., Sacramento, for respondent.
JANES, Associate Justice.
Petitioner, reimprisoned on charges of parole violation, seeks a writ of habeas corpus on the ground that the Adult Authority has denied him the hearings required by Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.
THE MORRISSEY CASE
Morrissey holds that, under the due process clause of the Fourteenth Amendment, a parolee is entitled to two separate hearings during 'the typical process of parole revocation.' The first hearing is 'in the nature of a 'preliminary hearing" conducted 'at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.' The ultimate function of the hearing officer at that initial stage is 'to determine whether there is probable cause or reasonable grounds to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.' Determination of that issue adverse to the parolee warrants his continued detention and return to the state correctional institution pending the final decision of the parole board on revocation. The preliminary hearing officer can be 'someone such as a parole officer other than the one who has made the report of parole violations or has recommended revocation.' (408 U.S. at pp. 484, 487, 92 S.Ct. 2593, 2601, 2603, 33 L.Ed.2d at pp. 496-498.)
Prior to the final decision by the parole authority, and within a reasonable time after the parolee is taken into custody, a second hearing must be held under Morrissey 'if it is desired by the parolee . . ..' The latter hearing--the revocation hearing itself--must be before 'a 'neutral and detached' hearing body such as a traditional parole board . . ..' The second hearing 'must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts [e. g., whether parole conditions were violated] and consideration of whether the facts as determined warrant revocation [e. g., whether there are mitigating circumstances].' (408 U.S. at pp. 487-489, 92 S.Ct. at p. 2603 [33 L.Ed.2d at pp. 498-499].)
Morrissey also specifies certain procedural rights which must be allowed the parolee in connection with each hearing. Common to both hearings are his right to advance notice of the claimed violations of parole, and his entitlement to be heard in person and to present witnesses and documentary evidence. At the Morrissey preliminary hearing, '[o]n request of the parolee, persons who have given adverse information on which parole revocation is to be based are to be made available for questioning in his presence. However, if the hearing officer determines that the informant would be subjected to risk of harm [108 Cal.Rptr. 95] if his identity were disclosed, he need not be subjected to confrontation and cross-examination.' At the later revocation hearing, the parolee has a similar 'right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) . . ..' (408 U.S. at pp. 486-489, 92 S.Ct. at p. 2603, 33 L.Ed.2d at pp. 497-499.)
The Morrissey decision was filed June 29, 1972. It declares that its procedural demands 'are applicable to future revocations of parole . . ..' (408 U.S. at p. 490, 92 S.Ct. at p. 2604, 33 L.Ed.2d at p. 499.)
FACTS
In the case at bench, the controlling facts alleged in the petition, return, and traverse are undisputed.
Petitioner was paroled to San Bernardino County on May 8, 1972. On July 28 his parole was suspended and he was ordered returned to prison 'pending further determination' of parole violation charges. He was arrested as a parole violator on July 31 in Bishop, Inyo County. On September 13 he was released from the custody of the Inyo County sheriff to the custody of the sheriff of San Bernardino County.
On September 26, 1972, a written specification of charges was addressed to the Adult Authority by petitioner's parole supervisors. The charges specified were (1) that petitioner violated 'condition 1' of his parole by leaving the San Bernardino County area the previous July without notifying his parole agent; (2) that petitioner violated 'condition 2' of his parole by operating a vehicle while intoxicated near Chino on July 8, 1972, in violation of Vehicle Code section 23102, subdivision (a), 'as evidenced by his conviction in San Bernardino Municipal Court,' where he was sentenced on September 14; and (3) that in July 1972 he violated 'condition 4' of his parole by writing a check without sufficient funds any by failing to comply with an agreement with the payee in Pomona to deposit funds to cover the check.
The nature of the cited parole conditions has not been specified to us either by petitioner or by the Attorney General, but may be inferred from the undisputed facts alleged.
It appears--from his traverse in this court--that petitioner did indeed, in a San Bernardino Municipal Court on September 14, 1972, plead guilty to drunk driving. We are further informed by the parties that, as a consequence of the latter conviction, he was jailed in San Bernardino County on September 14 as a condition of probation and that the jail term expired on October 13. On October 20 parole was again ordered suspended and petitioner was ordered returned to prison 'for revocation proceedings.'
On October 24, while still incarcerated at the San Bernardino County jail (even though his term for drunk driving had expired), petitioner was given a 'copy of the alleged Parole Violation charges' and a 'Notice of Rights to Pre-Revocation Hearing.' The latter notice informed petitioner that he was entitled to a 'Pre-Revocation [i. e., Preliminary] hearing within ten (10) days,' where he could testify concerning the parole violation charges, present documentary evidence and witnesses, and interrogate adverse informants. That same day (October 24), in the presence of a parole officer, petitioner made a written request for a pre-revocation hearing. On November 2, however, without the requested hearing, petitioner was removed from jail and was taken to the Reception Guidance Center at Chino; he was transferred six days later to the California Conservation Center [108 Cal.Rptr. 96] at Susanville ('approximately 600 miles from the alleged violation').
We quote the petition. Since it also alleges that 'the San Bernardino County Jail . . . [is] an area reasonably close to the locality where the alleged Violation occurred,' we infer that the 'copy of the alleged Parole Violation charges' which petitioner received on October 24 was a copy of the written specification of charges prepared by his parole supervisors on September 26.
On November 20, 1972, according to the return, '[p]etitioner received a copy of the charges against him as to the violation of parole conditions . . . '
The notice referred to in the return is attached as an exhibit to it. The notice, dated November 15, 1972, does not comport with due process. It states that a hearing on the charges will be held at a date and place 'to be determined . . ..' In describing the charges, it merely alleges that petitioner 'did violate Condition 1 of his Parole agreement . . . did violate Condition 2 of his Parole agreement . . . did violate Condition 4 of his Parole agreement.'
On December 20, shortly after we issued an order to show cause, petitioner was transferred to the California Institution for Men, Chino. The return further shows that an 'in-prison parole revocation' hearing for petitioner was 'scheduled to be held' at the Chino facility on or before February 9, 1973. Until oral argument on February 22, 1973, we had nothing before us to show whether petitioner's scheduled revocation hearing had been held, and if so, what transpired at such hearing. At the oral argument, the Attorney General filed an evaluation and dispositional report of the Adult Authority (presenting us with a seeming fait accompli) which indicates that an in-prison revocation hearing was held at Chino on February 9; that petitioner pled not guilty to all three parole violation charges; that he was found 'guilty as charged' on all counts; and that his parole was thereupon formally revoked.
No preliminary hearing on the parole violation charges has ever been held.
CONTENTIONS
Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, was decided one month prior to the suspension of petitioner's parole. His due process rights are therefore governed by Morrissey. (See, People v. Vickers (1972), 8 Cal.3d 451, 462, 105 Cal.Rptr. 305, 503 P.2d 1313.)
In response to petitioner's complaint that he has never had a Morrissey preliminary (i. e., pre-revocation) hearing, the Attorney General contends that 'In this case since one of the charged violations is the conviction of a new crime [i. e., drunk driving], no hearing to determine probable cause is necessary . . .. There is no danger in such a case that the parolee's liberty is being affected without probable cause.' The Attorney General claims support in Morrissey's statement that 'Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime' (408 U.S. at p. 490, 92 S.Ct. at p. 2605, 33 L.Ed.2d at p. 499).
The Attorney General's contention cannot be sustained. It attempts to carve out--from the dictum of Morrissey--an exception to Morrissey which the United States Supreme Court did not declare. [108 Cal.Rptr. 97] Morrissey included the preliminary hearing on the parole violation charges among the 'basic requirements' of due process; the high court did not exclude such requirement 'in the situation presented when the revocation is based on conviction of another crime.' The court merely excluded the parolee's relitigation of 'issues determined against him' in the criminal prosecution leading to such conviction. (408 U.S. at p. 490, 92 S.Ct. at p. 2605, 33 L.Ed.2d at p. 499.)
Morrissey did not involve parole violations amounting to conviction of a new crime. (See, 408 U.S. at pp. 472-474, 92 S.Ct. at p. 2596, 33 L.Ed.2d at pp. 489-490.)
Additionally, the Attorney General relies upon State v. Morales (1972), 120 N.J.Super. 197, 293 A.2d 672. That case is not authoritative. It not only applied Morrissey to a pre-Morrissey revocation (compare, People v. Vickers, supra, 8 Cal.3d at p. 462, 105 Cal.Rptr. 305, 503 P.2d 1313 but also--without analysis--relied upon the same dictum from Morrissey which is the foundation of the Attorney General's argument.
The basic flaw in the Attorney General's argument is that it presupposes that parole violation charges drafted by parole supervisors will, in all cases, accurately set forth the facts. It is unrealistic to presume such infallibility. Morrissey emphasizes that society, as well as the parolee, 'has an interest in not having parole revoked because of erroneous information. . . .' (408 U.S. at p. 484, 92 S.Ct. at p. 2601, 33 L.Ed.2d at p. 496.)
When a purported new conviction is alleged in a charge of parole violation (even where documented by an abstract of judgment), compliance with Morrissey requires, in our view, that an opportunity be available to the parolee to show that he was not the person convicted (cf., People v. Willison (1931), 116 Cal.App. 157, 159-160, 2 P.2d 543), that the offense of which he was convicted was other than the one specified as a parole violation (cf., People v. Morton (1953), 41 Cal.2d 536, 540-541, 261 P.2d 593), or that the charge alleging the conviction--except as to matters in fact determined in the criminal prosecution--is in other respects inaccurate (see, Mays v. Nelson (9th Cir. 1972), 464 F.2d 585). Such opportunity should be made available to the parolee at a Morrissey preliminary hearing, for, as Morrissey points out, '[t]here is typically a substantial time lag between the arrest and the eventual determination by the parole board whether parole should be revoked' (408 U.S. at p. 485, 92 S.Ct. at p. 2602, 33 L.Ed.2d at p. 496), and the parolee's ability to refute the charge of a new conviction may hinge upon whether 'information is fresh and sources are available' (ibid).
Mays v. Nelson, supra, 464 F.2d 585, well illustrates the unfairness which can result when infallibility is ascribed to a parole officer's description of judicial proceedings. While on parole from the California prison system, Mays was charged with battery, a misdemeanor (Pen.Code § 242). The latter proceeding culminated in his conviction upon a plea of guilty of disturbing the peace, a misdemeanor (Pen.Code, § 415). In subsequently suspending--and then revoking--Mays's parole, the Adult Authority relied in part upon an erroneous written report from his parole officer to the effect that, instead of battery, Mays had originally been charged with assault with a deadly weapon, a felony (Pen.Code, § 245). (See district court opinion, Mays v. Nelson (N.D.Cal.1971) 323 F.Supp. 587.)
The Attorney General quotes In re Cleaver (1968), 266 Cal.App.2d 143, at page 158, 72 Cal.Rptr. 20 at page 30 for the proposition that 'To allow inquiry into the merits of a charge of parole violation pending the hearing of a criminal case on which it is based would produce a chaotic situation.' Unlike Cleaver, however, the parole violation charge in the instant case alleges a prosecution which has terminated in conviction rather than one still pending in the trial court.
The Attorney General asserts that 'To require a pre-revocation hearing in all cases would, in the case where the revocation proceedings are based upon the conviction of a new crime, amount to a meaningless hearing at which probable cause for the parole violation will always be found since the hearing officer will be faced with the abstract of judgment itself.' In the same vein, the Attorney General contends that 'Even if the parolee were to claim at such [preliminary] hearing that he was not the person so convicted or that he was convicted of some other offense, the mere identity of name itself on the [abstract of judgment] [108 Cal.Rptr. 98] provides an inference that he was the party so convicted.'
The latter argument uses too broad a brush. Nothing in Morrissey precludes the parolee from making a knowing and intelligent waiver of the preliminary (i. e., prerevocation) hearing; for that reason, the hearing will not literally be required 'in all cases' contemplated by the Attorney General. Moreover, by arguing that the abstract of judgment will render the hearing 'meaningless,' the Attorney General implies that the recitals in such abstracts are inavariably free from error--a suggestion which, unfortunately, is not the case. (See, e. g., People v. McKissack (1968), 259 Cal.App.2d 283, 288-289, 66 Cal.Rptr. 199.) The argument also overlooks that, where a new conviction is alleged in a written specification of parole violation charges, the written specification (even if accompanied by an abstract of judgment) may contain prejudicial misinformation about the circumstances surrounding the new conviction--misinformation which would not be refuted by an abstract of judgment and which should be nipped in the bud. (See fn. 6, supra, and accompanying taxt.)
An even graver defect mars the Attorney General's claim that, for the purpose of a Morrissey preliminary hearing, an abstract of judgment on the new conviction would, ipso facto, 'always' produce a finding of probable cause. Morrissey makes clear that a parolee is entitled to be heard on the issue of probable cause and has a limited right to cross-examine on that subject. Giving unchallengeable effect to the abstract of judgment would reduce the Morrissey preliminary hearing to an ex parte proceeding--thus emasculating the Morrissey guarantee. (Cf., Jennings v. Superior Court (1967), 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304; see also, Jones v. Superior Court (1971), 4 Cal.3d 660, 666-668, 94 Cal.Rptr. 289, 483 P.2d 1241.)
Moreover, in requiring a preliminary hearing, Morrissey specifies that 'the determination that reasonable ground exists for revocation of parole should be made by someone not directly involved in the case'; and Morrissey declares that the 'parole officer . . . who has made the report of parole violations or has recommended revocation' is ineligible to make the determination of probable cause. (408 U.S. at pp. 485-486, 92 S.Ct. at p. 2602, 33 L.Ed.2d at p. 497.) In the present case, where the new conviction has been alleged in charges made by petitioner's parole supervisors, acceptance of the Attorney General's argument would, in effect, leave the decision as to probable cause with the very parole officers whom Morrissey has disqualified.
We note also the requirement of Morrissey that the preliminary hearing officer make 'a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position.' (408 U.S. at p. 487, 92 S.Ct. at p. 2603, 33 L.Ed.2d at p. 498.) Morrissey further declares that the second stage of parole revocation--the revocation hearing itself--'should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.' (408 U.S. at p. 489, 92 S.Ct. at p. 2604, 33 L.Ed.2d at p. 499.) The high court's latter statement is broad enough to permit the introduction, at the revocation hearing, of the preliminary hearing officer's summary or digest of the evidence. Petitioner was entitled to a preliminary hearing on all charges 'at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available' (408 U.S. at p. 485, 92 S.Ct. at p. 2602, 33 L.Ed.2d at p. 496). Denial of a preliminary hearing on even one of several parole violation charges, and the resultant lack of any summary or digest thereon by the hearing officer, could prove extremely prejudicial to a parolee at the revocation hearing when relevant information might no longer be fresh or available.
[108 Cal.Rptr. 99]Morrissey indicates that no preliminary hearing is required where parole is revoked on the basis of parole violation charges admitted by the parolee to the parole board. (408 U.S. at pp. 477, 490, 92 S.Ct. 2593, 33 L.Ed.2d at pp. 492, 499; see also, People v. Vickers, supra, 8 Cal.2d at p. 457, 105 Cal.Rptr. 305, 503 P.2d 1313, fn. 6.) However, petitioner's entitlement to a preliminary hearing on all charges--including the allegation of a new conviction--was in no way lessened by his subsequent admission to this court that he in fact pleaded guilty to drunk driving on September 14, 1972. Absent any showing that petitioner has admitted the charges to the parole board, the denial of a preliminary hearing has deprived him of due process.
Morrissey's requirement of a preliminary hearing would be meaningless if the Adult Authority could cure the lack of a preliminary hearing by the mere holding of a revocation hearing. The Morrissey case requires both hearings during the typical process of parole revocation. The omission of a preliminary hearing on charges of parole violation is analogous to the absence of a preliminary examination on criminal charges prosecuted thereafter by information. If the latter examination has not been waived, prejudice is presumed from the lack of one, and the defect is jurisdictional. (People v. Elliot (1960), 54 Cal.2d 498, 503-507, 6 Cal.Rptr. 753, 354 P.2d 225; People v. Brooks (1946), 72 Cal.App.2d 657, 661, 165 P.2d 51.) Petitioner's admission of the new conviction to this court does not discharge this court's obligation to assure to every parolee the procedural due process dictated by Morrissey. As said by our state Supreme Court in a related context: 'When we speak of administering 'justice' in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.' (People v. O'Bryan (1913), 165 Cal. 55, 65, 130 P. 1042, 1046; to the same effect, see People v. Elliot, supra, at pp. 506-507, 6 Cal.Rptr. 753, 354 P.2d 225.) 'Error that results in the deprivation of a basic right necessarily requires reversal to preclude prejudice to the judicial process and to the procedural rights of a litigant even though there might be equally fair alternatives consonant with due process.' (People v. Gaines (1962), 58 Cal.2d 630, 642, 25 Cal.Rptr. 448, 455, 375 P.2d 296, 303 (dissenting opinion by Traynor, J.); cf., People v. Billon (1968), 266 Cal.App.2d 537, 540-541, 72 Cal.Rptr. 198.)
Statements to the contrary in Richardson v. New York State Bd. of Parole (1973), 41 A.D.2d 179, 341 N.Y.S.2d 825, are dictum; the court there expressly noted that the validity of the parolee's revocation hearing was not in issue before it, nor did the court assume such validity.
DISPOSITION
A more difficult question concerns the result which should follow from the wrongful denial to petitioner of a Morrissey preliminary hearing. The disposition to be had following such denial appears to be without any reported appellate precedent in the United States, undoubtedly because Morrissey is so recent.
Prior to the decision in Morrissey, federal cases drew an analogy between delays in parole revocation hearings and denials of speedy trial. (See, United States v. Kenton (2d Cir. 1961), 287 F.2d 534, 536; United States v. Kenton (D.Conn.1967), 262 F.Supp. 205, 209.) Since it will best protect the rights of both society and the parolee, the analogy to delays in trial is appropriate in assessing the effect of denial of a Morrissey preliminary hearing. (McLucas v. Oswald (1973), 40 A.D.2d 311, 315, 339 N.Y.S.2d 760, 764.)
Where an unreasonable time has passed before commencement of a criminal [108 Cal.Rptr. 100] trial, and the defendant seeks pre-trial relief, it is unnecessary that he affirmatively show prejudice. In such circumstances, 'Prejudice will be presumed from the violation of this constitutional right. It is enough for the defendant to show that the prosecution has been unreasonably delayed. It will not be presumed that good cause for the delay in fact existed. If there was any good cause it [is] for the prosecution to show it.' (Harris v. Municipal Court (1930), 209 Cal. 55, 64, 285 P. 699, 702; see also, Barker v. Municipal Court (1966), 64 Cal.2d 806, 812-813, 51 Cal.Rptr. 921, 415 P.2d 809; People v. Wilson (1963), 60 Cal.2d 139, 151-152, 32 Cal.Rptr. 44, 383 P.2d 452.)
It is obviously too late to afford petitioner a prompt preliminary hearing, as Morrissey requires (408 U.S. at p. 485, 92 S.Ct. 2593, 33 L.Ed.2d at p. 496). According to the exhibits attached to the return, petitioner was available to the Adult Authority on October 13, 1972, upon completion of his jail term for drunken driving, but he was not removed from jail and returned to the prison system until November 2. As previously stated, petitioner's revocation hearing was not held until a date (February 9, 1973) almost four months removed from the date the jail term ended. No preliminary hearing had been held by the time of the revocation hearing--even though seven months had elapsed since the date Morrissey was filed. It is clear that by October 24, 1972 (approximately four months after Morrissey), the Adult Authority had formulated procedures to afford Morrissey preliminary hearings; on October 24 petitioner was given a Notice of Rights to Pre-Revocation Hearing' and made a written request for such hearing. Under these circumstances, the Attorney General makes no claim that the instant case is one wherein the lack of any preliminary hearing was a consequence of the Adult Authority's need for more time to adjust its procedures to the Morrissey holding. It follows that four months without a preliminary hearing (between the end of petitioner's jail term in October and his revocation hearing the following February) was an unreasonable period of time for petitioner to be denied that right.
Prior to Morrissey, it appears that three months was roughly the maximum delay that the federal courts would tolerate in the holding of federal parole revocation hearings subsequent to the apprehension of parolees. (Marchand v. Director, United States Probation Office (1st Cir. 1970), 421 F.2d 331, 335, fn. 5.) For example, in United States v. Kenton, supra, 287 F.2d at p. 536, the Court of Appeals expressed the view that 'No argument of administrative convenience can justify holding a parolee in custody for almost 4 months before granting him a statutory hearing on the issue of violation.' In Morrissey the revocation hearing for each parolee there involved was apparently held within two months after his arrest for parole violation, a lapse of time which the Supreme Court stated would meet its requirement that '[t]he revocation hearing must be tendered within a reasonable time after the parolee is taken into custody.' (408 U.S. at pp. 472-476, 488, 92 S.Ct. at pp. 2603, 2604, 33 L.Ed.2d at pp. 489-491, 498.)
The Attorney General makes no showing whatever of good cause for the failure to hold a preliminary hearing on the parole violation charges that petitioner left the San Bernardino County area without notifying his parole agent, and that he wrote a check without sufficient funds and breached an agreement to deposit funds to cover the check. Thus, applying the analogy of denial of a speedy trial, those two charges and the findings thereon must be stricken, reinstitution of the two charges is barred, and the Adult Authority must exclude--is its future consideration of petitioner's status--all reference to the incidents encompassed by those two charges.
The Attorney General argues that, notwithstanding the Adult Authority's failure--without good cause--to hold a Morrissey preliminary hearing, the Authority is still entitled to consider the alleged facts underlying the charge that a parolee violated his parole. Cases relied upon by the Attorney General, however, are pre-Morrissey decisions (i. e., cases decided before there was any constitutional compulsion to use specific procedures in determining the truth of such charges). Obviously, if the Attorney General's thesis were correct and the Adult Authority could still consider those alleged facts, there would be no point to Morrissey at all.
In contrast, as to petitioner's new conviction, it is manifest that the Adult Authority was relying in good faith on its mis-emphasis of the Morrissey dictum when the Authority denied petitioner a preliminary hearing on that charge. We therefore conclude that 'good cause' (within the [108 Cal.Rptr. 101] meaning of the speedy trial cases) has been shown in explanation of the latter delay. Although the revocation of petitioner's parole was based in part upon the new conviction, we may not assume that a preliminary hearing officer cannot hereafter impartially examine such charge as to the issue of probable cause. Nor may we assume that the Adult Authority will automatically re-revoke petitioner's parole if probable cause is found and the charged violation thereafter reaches the parole board in a revocation hearing. (See, In re Brown (1967), 67 Cal.2d 339, 62 Cal.Rptr. 6, 431 P.2d 630.)
The same showing of good cause explains why the Adult Authority waited an unreasonable length of time before it gave petitioner a revocation hearing.
It is ordered that (1) the Adult Authority strike from petitioner's records the charged violations of Conditions 1 and 4 of his parole and its findings of guilty thereon; (2) the Adult Authority is barred from reinstituting the charged violations of Conditions 1 and 4; (3) in its future consideration of petitioner's status and eligibility for parole, and its fixing of his term, the Adult Authority shall exclude all reference to the incidents encompassed by the charges of violation of Conditions 1 and 4; (4) the Adult Authority strike from petitioner's records its finding that petitioner violated Condition 2 of his parole; (5) the Adult Authority, if it elects to proceed further with the charged violation of Condition 2, shall return petitioner to the County of San Bernardino for a preliminary hearing thereon in conformity with the requirements of Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and with the views expressed herein, said preliminary hearing to commence within 30 days after this decision becomes final; and (6) if the Adult Authority elects not to proceed further with the charged violation of Condition 2, it shall strike said charge from petitioner's records with the same consequences as to said charge as are specified in respect to the other two charges mentioned in parts (2) and (3) of this paragraph, and, if the Adult Authority makes the latter negative election, petitioner shall be released from prison and restored to parole upon the same conditions of parole which existed prior to July 1972.
RICHARDSON, P. J., and FRIEDMAN, J., concur.
It seems fundamental that the notice required by Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, must be notice adequate to enable the parolee to plead to the charges of parole violation, to prepare any defense he may have, and to assert the Adult Authority's prior determination of the charges if they are ever brought again. Accordingly, whether in the context of the Morrissey preliminary hearing or later revocation hearing, the parolee must be given 'timely formal notice of (1) the conditions which he is accused of violating, (2) the manner in which he is accused of violating such conditions, and (3) the date and place of the proposed hearing' (Riggins v. Rhay (1969), 75 Wash.2d 271, 286, 450 P.2d 806, 815) (emphasis added). (Cf., People v. Jordan (1971), 19 Cal.App.3d 362, 368, 97 Cal.Rptr. 570; In re McDonald (1920), 45 Cal.App. 480, 486, 187 P.2d 991.)