Opinion
A158320
08-02-2021
In re DON C. WILSON, on Habeas Corpus.
NOT TO BE PUBLISHED
City and County of San Francisco Super. Ct. No. 07379
RICHMAN, J.
In 1972, petitioner Don C. Wilson was convicted of first degree murder with a firearm enhancement. That same year he began serving the indeterminate life term then specified by California law as the punishment for that crime. In 2020, having served 48 years in state prison, petitioner was released on parole.
Prior to his release, he had commenced this original proceeding seeking relief in habeas corpus. Although no longer actually incarcerated, as a parolee, petitioner is deemed to be in the constructive custody of prison officials, thus making the writ available to him if he can otherwise establish a claim to relief. (People v. Wagner (2016) 2 Cal.App.5th 774, 770 [“ ‘Actual detention in prison is not an indispensable condition precedent to the issuance of habeas corpus, and persons on parole... are, in a proper case, entitled to its issuance' ” quoting In re Jones (1962) 57 Cal.2d 860, 861, fn. 1].)
As might be expected from the foregoing, the nature of this action has evolved.
It began at some point in 2019, when petitioner submitted an in pro per Judicial Council form petition to the San Francisco Superior Court, the trial court of his conviction. The petition apparently challenged the legality of the most recent decision (August 10, 2018) of the Board of Parole Hearings (Board) declining to set a release date for petitioner. After the Superior Court denied the petition, petitioner refiled it in this court in September of that same year. We ordered the appointment of counsel, and directed counsel to file a supplemental petition addressing “claims relating to the legality of Petitioner's continued incarceration, including claims related to the 2018 hearing before the Parole Board.” We also set a briefing schedule.
The supplemental petition was filed in March 2020. It advised that “on January 14, 2020, the Board found Wilson suitable and ready for release from prison, and accordingly granted him parole.” However, given that petitioner was still incarcerated, the petition asked this court to order his immediate release. Petitioner stated his position and strategy as follows:
“Wilson claims that his CDCR [California Department of Corrections and Rehabilitation] custody since [sic: 1972] violates his federal and state constitutional rights to due process and to freedom from ex post facto and cruel and unusual punishment. He thus seeks not only preliminary relief that immediately frees him from prison, but also final and permanent relief that discharges him from CDCR custody. This amended petition makes the overall and principal claim that Wilson's continued CDCR custody, whether in prison or on parole, impose cruel and unusual punishment upon him. He backs up that claim with a claim that his continued CDCR custody is arbitrary in violation of his rights to due process of law. His final claim is that his continued CDCR custody imposed ex post facto punishment upon him. He claims that each of these accumulated constitutional violations and their totality entitle him to immediate release from prison and ultimately to discharge from CDCR custody.” As to his “principal claim, ” petitioner summarized it in these words: “Wilson's imprisonment approaching the half-century mark has been so extraordinarily long and under such onerous and arbitrary conditions that... his imprisonment has more than satisfied his sentence and now imposes cruel and unusual punishment upon him... entitling him to discharge from CDCR custody.”
Petitioner summarized his other constitutional claims as follows:
“In addition, Wilson claims that lawful execution of his sentence entitled him to release decades ago when the Board found him suitable for parole but nevertheless kept him confined to achieve uniformity of punishment. The Board did so at first by its own accord in violation of the law, but sustained that prolongation of punishment over the years through ex post facto application of laws that were enacted after his crime. That series of post-hoc legislative and initiative enactments individually and cumulatively has prolonged his imprisonment for so long that in equity it requires both his immediate release from prison and discharge from CDCR custody.
“Wilson's imprisonment has been marked over the years by a succession of arbitrary actions by CDCR and its parole arm that individually and cumulatively have deprived him of his liberty without due process of law. Again, they have been so longstanding and prejudicial to him that he is entitled to full restoration of his liberty through his immediate release from prison and discharge from CDCR custody.”
Petitioner alleged that that he “remains subject to further ex post facto and other arbitrary punishment if the Governor reverses [the Board's granting a release date].... Wilson is entitled to declaratory relief and injunctive relief as necessary to protect him from the threat of that additional punishment at this time[.]”
In addition to his immediate release, petitioner prayed this court to: “1. Declare the rights of the parties; [¶] 2. Make permanent any preliminary relief that frees Wilson from prison; [¶] 3. Order CDCR to discharge him from custody; [¶] 4. Grant him all other injunctive relief the Court may find appropriate; and [¶] 5. Grant any and all other relief necessary to promote the ends of justice and redress Wilson's unlawful custody.”
We issued an order to show cause, directing the CDCR to “address: (1) whether petitioner's continued custody has become constitutionally disproportionate under article I, section 17 of the California Constitution and/or the Eighth Amendment of the United States Constitution; (2) whether petitioner's continued custody imposes ex post facto punishment; and (3), if petitioner's continued custody is unlawful on either basis, what is the proper remedy.”
Grounds For Avoiding The Merits
It is undisputed that on April 28, 2020, petitioner was released from prison on a three-year parole term. That circumstance clearly moots his claim for his “immediate release from prison, ” just as it does his complaint that “decades ago when the Board found him suitable for parole, ” and his fear that the Governor might block his release. These points would ordinarily suggest that this proceeding is moot.
This court has held that “ ‘An appellate court will not review questions which are moot and which are only of academic importance. It will not undertake to determine abstract questions of law at the requests of a party who shows no substantial rights can be affected by the decision either way.' ” (Friends of Bay Meadows v. City of San Mateo (2007) 157 Cal.App.4th 1175, 1192.) We have also held this principle applicable to petitions for extraordinary writs. (Gridley v. Gridley (2008) 166 Cal.App.4th 1562, 1588.) “The proper disposition of a moot case is dismissal.” (In re Miranda (2011) 191 Cal.App.4th 757, 762.)
The petition was quoted at length in order to demonstrate that it had only a single objective-petitioner's release.
Petitioner did not seek redress for other prisoners similarly situated, something the record shows he has done in the past with some success. He sued for himself alone. All he wanted was to be released. This has occurred.
When, in his supplemental petition, petitioner alleged that he should be released unconditionally, and exempted from the constraints of parole, he confronts a line of authority apparently holding that these forms of relief are beyond the judicial power to grant. (See, e.g., In re Prather (2010) 50 Cal.4th238, 253-257 [courts cannot order release of life term prisoner improperly denied parole]; People v. Villa (2009) 45 Cal.4th 1063, 1073 [writ of habeas corpus “ ‘ “cannot itself require the final release of the petitioner, ”' ” quoting People v. Romero (1994) 8 Cal.4th 728, 738]; In re Miranda, supra, 191 Cal.App.4th at p. 763 [Prather does not permit a court to “order a reduction of his parole period”].)
“[T]he continuing existence of the collateral consequences of a criminal conviction may be relevant to determining a mootness claim.” (People v. Villa, supra, 45 Cal.4th at p. 1071, italics added.) Petitioner did not point to any collateral consequences or disabilities which might preclude mootness. (Cf. Lane v. Williams (1982) 455 U.S. 624 [Supreme Court rejected claims of paroled felons challenging mandatory parole period that their challenges were not moot because possible revocation could be used to their detriment in future proceedings].)
Thus, had matters remained static, dismissal for mootness might have been an irresistible conclusion. (See In re Miranda, supra, 191 Cal.App.4th at p. 762 [“Miranda's petition for a writ of habeas corpus is moot because the only remedy he requests (immediate release) and the only remedy we have authority to give (a new parole-suitability hearing) are no remedy at all to one who has already been released [on parole] from prison”].)
But matters did not remain static.
At the time petitioner filed his original petition, this court had already decided In re Palmer (2019) 33 Cal.App.5th 1199, where we ended his parole-a point on which, as discussed below, the Supreme Court reversed. Palmer was 17-years-old when he was convicted of kidnapping for the purpose of robbery, for which he was sentenced to life with the possibility of parole under the provisions of the Determinate Sentencing Act. “He became eligible for parole in 1996 and, over the next 19 years, had 10 parole suitability hearings at which parole was denied.” (Id. at p. 1202.) He filed a habeas petition in which he alleged that “his continued incarceration for a crime committed in 1988 [w]as cruel and unusual punishment” according to the California and United States constitutions. (Ibid.)
Like petitioner here, Palmer's cruel and unusual argument was not directed at “the indeterminate life term to which he was sentenced but the actual term of years he was required to serve.” (In re Palmer, supra, 33 Cal.App.5th at p. 1205.) In other words, Palmer was not so much challenging the statutory length of a kidnapping sentence per se as he was claiming it was constitutionally excessive as applied to him. We said: “Most claims of constitutionally excessive punishment challenge sentences when first imposed, looking prospectively at the time the offender will serve. Such challenges rarely succeed, as courts generally defer to determinations of the punishments appropriate to particular offenses made by legislative representatives of the People. Indeterminately sentenced inmates, however, serve terms whose length is fixed not by the Legislature but by the decisions of the Board... as to whether and when the prisoner has become “suitable” for release on parole. As will be seen, the serial denials of parole Palmer experienced resulted in punishment so disproportionate to his individual culpability for the offense he committed, that it must be deemed constitutionally excessive.” (Id. at p. 1202; cf. id. at p. 1208 [“the question here is not whether a life sentence for the offense of kidnapping for robbery is proportionate in the abstract”].)
We then examined Palmer's incarceration history according to the factors established in In re Lynch (1972) 8 Cal.3d 410, namely: “ ‘[a] petitioner attacking his sentence as cruel or unusual must demonstrate his punishment is disproportionate in light of (1) the nature of the offense and [the petitioner's personal characteristics and] background, (2) the punishment for more serious offenses, or (3) the punishment for similar offenses in other jurisdictions.' ” (In re Palmer, supra, 3 Cal.App.5th at pp. 1207, 1209.) These factors broke in Palmer's favor: he was a juvenile; used an unloaded gun; the duration of the crime was brief; the only person injured was Palmer; and the 30 years imprisonment he had already served was longer than for more serious crimes. (Id. at pp. 1208-1221.)
Finally, we addressed Palmer's argument that he was entitled to immediate release, freed of actual and constructive custody, the latter meaning he should be released from any remaining period of parole. The matter of actual custody was answered because Palmer had been released on parole. We concluded that because Palmer “was serving a prison sentence that had become constitutionally excessive [and]... his continued imprisonment was unlawful. He is, therefore, ‘entitled to be freed from all custody, actual or constructive.' ” (In re Palmer, supra, 33 Cal.App.5th at p. 1223.) And from this conclusion followed our disposition: “Petitioner has already served a prison term grossly disproportionate to his offense. His continued constructive custody thus constitutes cruel and unusual punishment.... He is entitled to release from all forms of custody, including parole supervision.” (Id. at p. 1224.)
Our opinion did not specifically analyze whether we had the power to order termination of Palmer's parole period, a point that was later addressed by our Supreme Court when it granted review of our decision. Although it largely agreed with us that “habeas corpus relief is available to inmates whose continued incarceration has become constitutionally excessive, but who have been denied release by the Board, ” the court disagreed with our conclusion that “[b]ecause Palmer's prison sentence ‘had become constitutionally excessive' before his release on parole” this by itself justified ending the constructive restraints of parole. (In re Palmer (2021) 10 Cal.5th at pp. 966-967.)
Palmer was sentenced under the Determinate Sentencing Law (DSL), but petitioner was sentenced under the Indeterminate Sentencing Law (ISL). The distinction is crucial.
The Supreme Court looked at three decisions ordering an inmate's immediate release and noticed that “[a]ll of these cases were decided under the former ISL. [Citation.] Under that scheme, the trial court sentenced a defendant to prison for ‘ “the term prescribed by law.”' [Citation.] This unitary ‘term' represented ‘ “the total time the state had jurisdiction over the prisoner, ”' whether in actual custody or constructive custody. [Citation.] The Adult Authority had the power to decide when an inmate could be released on parole [citation]-as well as the power to select a term within the statutory maximum and minimum [citation]-but the time spent in prison and the time spent on parole together comprised a single term. [Citation.]
“So when we decided in [In re] Rodriguez [(1975) 14 Cal.3d 639, ] for example, that the habeas corpus petitioner should be discharged from his ‘term, it necessarily followed that he would be discharged “from custody, ” including the constructive custody of parole. [Citations.] Once the ‘term' was found to be excessive, the legal basis for continuing custody-whether actual or constructive-necessarily evaporated.” (In re Palmer, supra, 10 Cal.5th at p. 975.) “By invalidating the term as constitutionally disproportionate, we necessarily relieved the habeas corpus petitioner from serving any [remaining] part of the term.” (Id. at p. 976.)
Such is not true for the DSL, under which Palmer was sentenced: “Under post-1977 law, ‘ “Parole is no longer service of the term.”' [Citation.] It is instead a separate period following completion of the term. [Citation.] ‘ “ ‘Term' now means the period of actual confinement prior to release on parole.”' ” (In re Palmer, supra, 10 Cal.5th at p. 975.) The possibility of further incarceration for a parole violation does not effect this principle. (Id. at p. 978.)
In short, if a court concludes that a DSL sentence is constitutionally excessive, it cannot order an inmate's immediate release from all manner of custody. Parole is a form of punishment, but it also serves legitimate and important societal interests other than the penal. Thus, it can have an existence independent of an excessive sentence: “Though parole and imprisonment are often tethered, they are not so entangled that a defect in one form of custody necessarily and fatally infects all forms of custody. Imprisonment, for example, may become cruel or unusual because of substandard conditions of confinement. [Citation.] Yet never have we held that inmates who successfully challenge their conditions of confinement-and secure an amelioration of those conditions-would be entitled to their freedom before their sentences have ended. [Citations.] A constitutional error involving one aspect of punishment does not inevitably and fatally infect all other aspects.” (In re Palmer, supra, 10 Cal.5th at pp. 976-977.) Accordingly, the court rejected Palmer's “current claim that he was automatically entitled to ‘an end to all custody and punishment' at the moment his continued incarceration became excessive.” (Id. at p. 979.)
By the time appointed counsel filed petitioner's supplemental petition, Palmer had not yet been decided by the Supreme Court. Although it was not articulated with the conciseness used by the Supreme Court, the supplemental petition demonstrated counsel's understanding that the concept of custody under the ISL encompassed parole, and that petitioner was seeking to be relieved of any constructive custody on parole.
It is clear from the foregoing that this matter is not moot. If petitioner's excessive punishment claim is meritorious, he will be freed from the constructive restraint of his remaining period of parole.
The Attorney General advances other reasons for denying the petition on non-substantive grounds. With respect to petitioner's ex post facto claim, the Attorney General argues that the merits are procedurally barred by collateral estoppel, are successive to previous unsuccessful efforts to obtain his release, and are untimely. But ex post facto analysis does not figure in our ultimate conclusion. And the nature of petitioner's cruel and unusual punishment claim, and its ripeness for decision, only emerged with the passage of time-a great deal of time.
The Merits
At the outset we reject petitioner's characterization that he was given “a seven year-to-life sentence” in 1972. Although this has long been the minimum number of years to be served for a life term (see Pen. Code, §§ 3046, subd. (a)(1) [“An inmate imprisoned under a life sentence shall not be paroled until he or she has served... [¶]... A term of at least seven calendar years”], 3049 [“no prisoner sentenced prior to July 1, 1977 may be paroled until he has served the minimum term of imprisonment provided by law for the offense”]), it can also be viewed as a purely negative command-no person sentenced to a life term can be released before seven years are served. Our Supreme Court called it only “a tentative parole date.” (In re Rodriguez, supra, 14 Cal.3d at p. 646.) In no way was it anything like an entitlement to parole at the conclusion of that period, or under the ISL, a limitation on the authority of the Board (and its statutory predecessors) to keep an inmate incarcerated. “[A]n inmate whose maximum term was life in prison could remain in custody for life, if not granted parole.” (People v. Jefferson (1999) 21 Cal.4th 86, 95.)
Seven years was simply petitioner's minimum eligible parole date (MEPD), which was initially set for July 18, 1979. At that time, under the ISL, “prison inmate might wait for many years without either a parole date or [an] ultimate discharge date.” (In re Stanley (1976) 54 Cal.App.3d 1030, 1033-1034.) This system proved unsatisfactory in practice, and by the mid-1970's, the Legislature and the Board were looking to inject objective standards to provide greater uniformity in parole decisions. (See, e.g., In re Dannenberg (2005) 34 Cal.4th 1061, 1077-1079; 1088-189; In re Stanworth (1982) 33 Cal.3d 176, 181-185; In re Stanley, supra, at pp. 1034-1035.) A major step to that end was fixing an inmate's “base term, ” and when that period was served a life prisoner could first be found suitable for parole and then be given an actual release date. (See In re Butler (2018) 4 Cal.5th 728, 734-735 and regulations [some subsequently repealed] cited.)
At the time petitioner entered prison, inmates convicted of first degree murder were typically granted parole after serving slightly more than 12 years. (See In re Sturm (1974) 11 Cal.3d 258, 261, fn. 3.) A study titled “Historical Data For Time Served by Male Felons Paroled From Institutions, ” prepared by the CDCR in 1982, showed that 90% of first degree murderers served less than 20 years.
When what was then the Community Release Board considered petitioner's case in July 1978, it concluded that he was “eligible for parole” for specified reasons. His base term was set at 182 months (15 years, 2 months). Petitioner was serving that term after his MEPD lapsed. Also, the ISL had been replaced by the DSL.
In December 1982, the California Supreme Court held that a person sentenced to a life term under the ISL was “entitled to parole release consideration under [the ISL] and the administrative guidelines which were in effect at the time he was sentenced and also under the [DSL] and its implementing regulations.” (In re Stanworth, supra, 33 Cal.3d at pp.177-178.) Each inmate in petitioner's situation “is entitled to parole release consideration under both ISL and DSL standards, ” and also “entitled to a hearing and to the benefit of the earlier release date, if any, set pursuant to both standards.” (Id. at p. 188.)
The following May, the Board conducted such a hearing. Petitioner alleged that the proceeding was a sham in that the Board improperly “applied its... regulations to him, ” with the upshot that the Board “calculated a PBR term”-that is, his expected term calculated to the parole board regulations promulgated to achieve integration and uniformity of treatment for ISL and DSL inmates-“that resulted in a projected parole date of May 18, 1986.” Under court order, in October 1984, the Board held a new hearing and reached the same result.
A year earlier, in October, 1983, petitioner's co-defendant was released on parole.
Petitioner's next hearing before the Board commenced in May 1985. Although the process and events are somewhat murky, the bottom line was that in August the Board, after upholding two disciplinary charges, rescinded his release date. And petitioner's effort to set aside the decision in habeas corpus failed.
In the two decades from 1986 to 2006, Petitioner was denied a release date nine times, in 1986, 1988, 1990, 1991, 1993, 1996, 2000, 2002, 2006. Although the reason for the denials is not established with certainty, it appears to have been aggressiveness (usually verbal, which decreased over time) and refusal to acknowledge responsibility (which he did not).
When petitioner next appeared for parole consideration in 2010, Marsy's Law was in place. One of the changes made by that measure was to amend Penal Code section 3041.5 “to increase the time between parole hearings absent a finding by the Board that an earlier hearing is appropriate.” (In re Vicks (2013) 56 Cal.4th 274, 283.) Petitioner was again denied a release date, and he was told he would not have another hearing for 15 years (later reduced to 10 years).
Petitioner did not have to wait until 2025 for his next hearing. Only eight years passed before, in 2018, the Board again denied him a release date.
But now, recent statutory changes worked to benefit petitioner. First, the Board treated him as a Youthful Offender because he was under 25 at the time of the murder and had not subsequently committed another criminal offense. (See Stats. 2017, ch. 675, § 4, amending Pen. Code, § 3051, subd. (a) [“A youth offender parole hearing is a hearing by the Board... for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger... at the time of controlling offense”].) This was not a purely procedural measure, but one with a clear substantive change. The Board was statutorily directed to “take into consideration the diminished capacity of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual.” (Pen. Code, § 3041, subd. (f)(1).)
According to our Supreme Court: the statute “has changed the manner in which the juvenile offender's original sentence operates by capping the number of years that he or she may be imprisoned before becoming eligible for release on parole, ” and “reflects the Legislature's judgment that 25 years is the maximum amount of time that a juvenile offender may serve before becoming eligible for parole.” (People v. Franklin (2016) 63 Cal.4th 261, 278.) This court has noted that the change was “designed to effectuate the constitutional prohibition against excessive punishment of youthful offenders.” (In re Trejo (2017) 10 Cal.App.5th 972, 987.)
Second, petitioner qualified for the Elderly Parole Program. (See Stats. 2017, ch. 676, § 3, adding Pen. Code, § 3055, subd. (a) [“The Elderly Parole Program is hereby established, to be administered by the Board... for the purposes of reviewing the parole suitability of any inmate who is 50 years of age or older and has served a minimum of 20 years of continuous incarceration”].) In implementing this measure, the Board is directed to “give special consideration to whether age, time served, and diminished physical condition... have reduced the elderly inmate's risk for future violence.” (Id., subd. (c).) The Legislature's intent was not entirely altruistic: “[T]he legislation's main purpose was to curb rising medical costs of the geriatric inmate population and to provide a ‘compassionate' release for those elderly individuals.” (People v. Contreras (2018) 4 Cal.5th 349, 374.)
Petitioner's situation differs from Palmer's in several significant-and negative-aspects: (1) the murder was not petitioner's first offense; (2) his offense entailed the ultimate harm of taking another person's life; and (3) his conduct showed nothing like Palmer's intent to avoid hurting others.
On the other hand, while not an actual juvenile like Palmer, petitioner did qualify as a youthful offender. With the benefit of these new statutory lenses, we conclude that the totality of petitioner's ISL term must be classified as constitutionally excessive.
A large measure of the force of petitioner's argument was neutralized when he was released on parole, because the focus would no longer be on whether whatever period he continued to be incarcerated would be constitutionally excessive. With petitioner's release, and the passing of the first year of his parole period without incident, the question is reduced to the more modest one of whether he must comply with the remaining months of his period of parole, which, as the Supreme Court made clear in Palmer. (In re Palmer, supra, 10 Cal.5th at p. 976), will constitute the entirety of his ISL “term.” If we conclude he must, we will be ratifying that-tacitly concluding that a total ISL term of 50 years in actual and constructive custody is not constitutionally excessive. This we cannot do.
The Attorney General perceives that petitioner is arguing “he should have been released on November 1, 1978, when he was granted parole [sic], or on his July 18, 1979 minimum parole eligible date, ” and, based on that perception, urges us to conclude that petitioner's ex post facto claim “is barred as untimely and successive, and by the collateral estoppel doctrine.” However, as previously stated, we do not decide that constitutional claim. In addition, we believe the Attorney General is mischaracterizing the essence of petitioner's claim-as shown by the excerpts of the supplemental petition quoted ante, a claimed ex post facto violation is only part of petitioner's general claim that the term of his imprisonment, actual and constructive, is constitutionally excessive.
And that general claim would only assume substance-and potency-with each passing decade. The judicial response would likewise differ with time: a court asked in 1980 to declare petitioner's period of time served a violation of the Eighth Amendment would have a very different attitude if considering that question 40 years later. For this reason alone, we would have considerable difficulty in accepting the 1980 attempt as collaterally estopping the 2020 claim.
It cannot be forgotten that petitioner was originally sentenced under the ISL. Under that scheme, his MEPD was initially set by the Adult Authority (the statutory predecessor to the Board) for July 18, 1979. Granted, it was no more than “a tentative parole date” (In re Rodriguez, supra, 14 Cal.3d at p. 646), but when the Community Release Board considered petitioner's case in July 1978, it concluded that he was “eligible for parole” for specified reasons. His base term was set at 182 months (15 years, 2 months).
One of the reasons for switching from the ISL to the DSL was that the latter plainly adopted punishment as it main objective: “[B]y altering the statutory scheme and enacting the DSL, the Legislature recited specifically that it ‘finds and declares that the purpose of imprisonment for crime is punishment.' (Pen. Code, § 1170, subd. (a)(1)...).” (In re Stanworth, supra, 33 Cal.3d at p. 182.) This approach was almost a complete reversal of the ISL: “ ‘[T]he purpose of the indeterminate sentence law... [was] to mitigate the punishment which would otherwise be imposed upon the offender. These laws... seek to make the punishment fit the criminal rather than the crime.' ” (In re Minnis (1972) 7 Cal.3d 639, 644, italics omitted, quoting In re Lee (1918) 177 Cal. 690, 692.)
In May 1983, during the transition from the ISL to the DSL, the Board calculated petitioner's “PBR term” with a projected parole date of May18, 1986. Although this date was subsequently rescinded by the Board, it was nevertheless the third time the relevant body determined that petitioner could be paroled before 2000.
Petitioner was 26 years and three months old when he was “received” by the Department of Corrections on November 24, 1972. He was four months shy of his 75th birthday when he was released on April 28, 2020, subject to three years of parole. That would make his total ISL term 51 years and six months, of which he has served all but the 23 remaining months of parole. Whether evaluated under the ISL or the DSL, we conclude that the more than 49 years he has already served are constitutionally excessive.
The net effect of the decisions fixing petitioner's MEPD for July 1979 and setting his base term at 15 years and two months put prison officials on record as accepting that that amount of time would be proportionate to petitioner's culpability, and thus, not constitutionally excessive. (See In re Rodriguez, supra, 14 Cal.3d at p. 652 [“the [Adult] Authority must fix terms within the statutory range that are not disproportionate to the culpability of the individual offender”]; cf. People v. Wingo (1975) 14 Cal.3d 169, 183 [“ ‘In the case of a life term convict who the Authority does not believe merits a lesser term it may, and customarily does, act by simply refraining from fixing his term at a span of years[, ]' ” quoting People v. Harmon (1960) 54 Cal.2d 9, 16].) On the other hand, like the MEPD, the ISL base term is not an entitlement, and “the Authority [may] retain a prisoner for the full... term if his release might pose a danger to society[.]” (In re Rodriguez, supra, at p. 652.)
Petitioner presented statistics showing that, under the ISL, murderers generally served less than 20 years before getting parole. This was in general accord with his base term of slightly more than 15 years. Yet even the higher figure was less than half of the time petitioner actually served.
As previously noted, the youthful offender parole hearing program “reflects the Legislature's judgment that 25 years is the maximum amount of time that a juvenile offender may serve before becoming eligible for parole.” (People v. Franklin, supra, 63 Cal.4th 261, 278.) At the 2020 hearing, when petitioner was given a release date, the Board opened the proceeding by stating that petitioner's “youth parole eligibility date” was July 19, 1991, which was “long past.” At that hearing the Board also stated that petitioner's “elderly parole eligibility date” was August 24, 2006, and that it too was “long past.” The elderly parole program, like the youthful offender program, was intended to override statutorily mandated sentences. (See People v. Franklin, supra, 63 Cal.4th 261, 272; In re Hoze (2021) 61 Cal.App.5th 309, 317-318; In re Trejo, supra, 10 Cal.App.5th at pp. 986-987.)
Our review of the record establishes that petitioner's situation is a near-textbook example for these programs.
The psychologist who prepared the Comprehensive Risk Assessment in 2018-which was also used at the 2020 hearing-rated petitioner's “risk for violence at this time” as “low.” Petitioner “has managed to avoid engaging in physical violence for more than 20 years, ” and “has not engaged in any documented... threats of violence since 2013.” His “anger has consistently produced verbal outbursts rather than physical manifestations of violence, ” and “there appears to be a decrease in the seriousness of antisocial behaviors as he has aged and matured.”
In all his years behind bars, petitioner never joined a criminal gang. The psychologist noted that “he has demonstrated the ability to maintain behavioral control, and stability over an extended period of time.... As such, his current behavior in custody is likely an indication of how he may conduct himself in the community.”
Indeed, this was not a recent development. As early as 1993, when denying parole, the Board noted that “he does not appear to be a violent person.” In 2000, a psychologist concluded that petitioner was “no longer dangerous' in the physical sense.” Six years later, petitioner was assessed that he “would be expected to be able to conduct himself in a non-violent manner.” And when petitioner was given a release date in 2020 the Board noted that “Mr. Wilson... has demonstrated a lengthy period of rehabilitation specifically in the area of violence... he has demonstrated a prolonged period... where he has not participated in any violence.” The murder was the sole incident of physical criminal violence committed by petitioner.
Petitioner was born in San Francisco, but moved to Texas when he was four after his parents divorced. In terms of education, he got no further than the 10th grade (he earned at GED in 1991). He witnessed a lynching as a child. The Comprehensive Risk Assessment noted that petitioner “was first arrested at age 10 for burglary and again at age 14 for burglary and [was] placed in a boy's ranch, ” and that “Mr. Wilson reported a history of childhood behavior and juvenile delinquency beginning at approximately age 13.... He was also incarcerated as a juvenile for... car theft.” Later, “at age 14, ... I stole a car because I couldn't afford one, ” an action for which “I went to the Texas Penitentiary.” He never married and has no living relatives.
The psychologist who prepared the 2018 Comprehensive Risk Assessment noted that petitioner “began his criminal history at a very early age, ” and his “problematic behaviors continued upon his incarceration.” The psychologist noted that petitioner's “lack of trust in authority appears to be related to his perceived mistreatment and factors related to his growing up in the South as a young Black male, ” and his “history... of defiant attitude... may be directly related to his life experiences, ” and may “have led to... poor institutional behavior.” Petitioner has gone almost a quarter century without giving in to a violent impulse. His “antisocial behaviors” have greatly abated, if not disappeared entirely.
These factors of emotional immaturity, a difficult family history, and impetuous early criminality, favor petitioner's youthful offender release.
So, too, does petitioner's physical condition under elderly parole. The 2018 Comprehensive Risk Assessment noted: “Mr. Wilson is currently 71 and has been incarcerated for 46 years.... [¶] Mr. Wilson has suffered from heart disease (he had a triple bypass in 2007), vascular disease, spinal stenosis, and hypertension. Records indicate that he is currently able to ambulate with use of a cane. His physical limitations may... require being near a facility that is equipped to provide any required physical/medical support and has appropriate accessibility options for him.” Petitioner takes medication for high blood pressure and diabetes. He had an operation for spinal stenosis in 2015, but the condition “has gotten worse since the operation.” The heart operation required grafting a vein from his leg, which impaired his leg strength. He is in pain whenever he moves, and can go no more than 15 yards without his cane.
Petitioner has served almost 49 years, more time than any of the benchmarks set for him, namely, his MEPD of July 1979; the July 1978 determination that he would be in effect “eligible for parole” when he had served 15 years and 2 months; his “youth parole eligibility date” of July 1991; and his “elderly parole eligibility date” of August 2006. He entered prison as an angry young man. He left it considerably mellowed, but burdened by numerous physical afflictions. Although he had his share of disciplinary infractions, he educated himself and committed no new criminal offense. So far as the record shows, he has done nothing to violate his parole since release. Remembering that the purpose of the ISL was “ ‘to mitigate the punishment which would otherwise be imposed upon the offender [and]... make the punishment fit the criminal rather than the crime.' ” (In re Minnis, supra, 7 Cal.3d 639, 644), we conclude that 51 years of actual and constructive custody is so disproportionate to petitioner's individual culpability as to be constitutionally excessive for the sole act of criminal violence he committed in 1972. (In re Palmer, supra, 10 Cal.5th at p. 972.)
The petition for a writ of habeas corpus is granted. Respondent is directed to discharge petitioner from parole upon the finality of this opinion. Good cause appearing, this decision shall be final as to this court in ten days. (Cal. Rules of Court, rule 8.387(b)(3)(A).)
WE CONCUR: Kline, P. J., Miller, J.