Dilbert v. Newsom ( 2024 )

Filed 4/8/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CLIFFORD ALAN DILBERT, C096274
Plaintiff and Appellant, (Super. Ct. No. 34-2018-
80003003-CU-WM-GDS)
v.
GAVIN NEWSOM, as Governor, etc.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Steven M.
Gevercer, Judge. Affirmed.
Clifford Alan Dilbert, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Sara J. Romano, Senior Assistant Attorney General,
Julie A. Malone, Supervising Deputy Attorney General, Yun Hwa Harper, Deputy
Attorney General, for Defendant and Respondent.
SUMMARY OF THE APPEAL
Petitioner and appellant Clifford Alan Dilbert sought a petition for writ of mandate
to compel respondent and appellee Governor Gavin Newsom to process his applications
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and reapplications for clemency/commutation, to render a decision on those applications,
and to notify Dilbert of the decision in a timely manner. The trial court sustained the
Governor’s demurrer to the petition without leave to amend, concluding Dilbert does not
have a due process right to have his applications processed within a particular time frame
and the law imposes no duty to process clemency applications within a particular time
frame. Dilbert appeals. We affirm the trial court’s order.
FACTS AND HISTORY OF THE PROCEEDINGS
Petition for Writ of Mandate
According to the operative amended petition for writ of mandate (writ petition), in
2016 and 2017, Dilbert filed petitions for clemency and/or commutation of his prison
sentence with the Governor’s office. He filed reapplications with the Governor’s office
in 2019 and 2021. Dilbert has not received any communication from the Governor’s
office that his clemency petition has been received or processed.
Instructions made available online by the Governor’s office (instructions), which
Dilbert attached to the writ petition state, “[i]n deciding whether to grant a commutation,
the Governor’s Office will carefully review each commutation application” and consider
various enumerated factors. The instructions also say, “[a]pplicants will be notified when
the Governor takes action on a commutation application.” The instructions further state
that, “[i]f you submitted a commutation application to a prior governor and did not
receive notice of a commutation grant, your application is deemed closed. If you
submitted a commutation application in the last three years and would like Governor
Newsom to re-open your prior application and consider it, you may submit a
Reapplication for Clemency.” The instructions then explain the process for reapplication.
The writ petition seeks a writ of mandate “direct[ing] the Governor to adhere to
his ministerial duty” to process Dilbert’s clemency petitions and reapplications, “render a
decision on those filings,” and “inform [Dilbert] of the decision in a timely fashion.”
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In the writ petition, Dilbert alleged that the Governor had a clear, present, and
ministerial duty to process his petitions. Dilbert asserted he has due process rights under
the Fourteenth Amendment of the U.S. Constitution and article I, section 7 of the
California Constitution to have his application processed. He also states, based on the
language in the instructions, that the Governor is “legally obligated by [his] own
application language as well as Due Process to” review clemency applications and
reapplications and to notify applicants once the Governor has acted on the applications.
Demurrer and Judgment
The Governor filed a demurrer to the petition. The court ordered the California
Department of Corrections and Rehabilitation to allow Dilbert to participate in the
hearing on the demurrer either by Zoom or telephone. Dilbert and counsel for the
Governor appeared at the hearing on the demurrer by Zoom. On March 30, 2022, the
trial court issued an order sustaining the demurrer without leave to amend. Dilbert filed
his notice of appeal on May 11, 2022.
DISCUSSION
I
Nature of Writ Relief and Standard of Review
“A writ of mandate will lie to ‘compel the performance of an act which the law
specifically enjoins, as a duty resulting from an office, trust, or station’ (Code Civ. Proc.,
§ 1085) ‘upon the verified petition of the party beneficially interested,’ in cases ‘where
there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’ (Code
Civ. Proc., § 1086.) The writ will issue against a county, city or other public body or
against a public officer. [Citations.] However, the writ will not lie to control discretion
conferred upon a public officer or agency. [Citations.] Two basic requirements are
essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon
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the part of the respondent [citations]; and (2) a clear, present and beneficial right in the
petitioner to the performance of that duty [citation].” (People ex rel. Younger v. County
of El Dorado (1971) 5 Cal.3d 480, 490-491, fn. omitted.)
“When a demurrer is sustained,” to a petition for writ, “appellate courts conduct a
de novo review to determine whether the pleading alleges facts sufficient to state a cause
of action under any legal theory. [Citation.] Appellate courts treat the demurrer as
admitting all material facts properly pleaded,” and accept as true facts which may be
properly judicially noticed, “but do not assume the truth of contentions, deductions or
conclusions of law. [Citation.] The pleader’s contentions or conclusions of law are not
controlling because appellate courts must independently decide questions of law without
deference to the legal conclusions of either the pleader or the trial court.” (Villery v.
Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 413, fn.
omitted; Ellena v. Department of Ins. (2014) 230 Cal.App.4th 198, 205.) “ ‘Reversible
error exists only if facts were alleged showing entitlement to relief under any possible
legal theory. [Citations.]’ ” (Ashlan Park Center LLC v. Crow (2015) 233 Cal.App.4th
1274, 1278, quoting Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.)
We also note “a fundamental principle of appellate procedure [is] that a trial court
judgment is ordinarily presumed to be correct and the burden is on an appellant to
demonstrate, on the basis of the record presented to the appellate court, that the trial court
committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018)
5 Cal.5th 594, 608-609.)
Each argument made in an appellate brief must be “under a separate heading or
subheading summarizing the point,” and each point must be supported “by argument and,
if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) When a
party fails to place an argument under a proper heading or subheading, we need not
consider the issue. (See Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 542;
Browne v. County of Tehama (2013) 213 Cal.App.4th 704, 726.) Moreover, the
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obligation to support points with argument and citations to authority, requires more than
simply stating a bare assertion that the judgment “is erroneous and leaving it to the
appellate court to figure out why; it is not the appellate court’s role to construct theories
or arguments that would undermine the judgment and defeat the presumption of
correctness.” (Eisenberg et. al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2022) ¶ 8:17.1; see also Hewlett-Packard Co. v. Oracle Corp. (2021)
65 Cal.App.5th 506, 565 [quoting Eisenberg when finding an appellant’s argument could
not prevail on the grounds the appellant failed to “develop a reasoned argument supported
by legal authority”]; Lee v. Kim (2019) 41 Cal.App.5th 705, 721 [quoting Eisenberg];
Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [“This court is not inclined to act as
counsel . . . for . . . any appellant and furnish a legal argument”].)
To the extent Dilbert believes he has made an argument that we have not
addressed in this decision, we note his briefing lacked the requisite headings and
subheadings, and offered very little in the way of developed arguments and citations.
And “self-represented parties are ‘ “held to the same restrictive procedural rules as an
attorney.” ’ (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [].) ‘A doctrine generally
requiring or permitting exceptional treatment of parties who represent themselves would
lead to a quagmire in the trial courts, and would be unfair to the other parties to
litigation.’ (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [].)” (Burkes v. Robertson
(2018) 26 Cal.App.5th 334, 345.)
II
Nature of and Law Governing Clemency
“The general authority to grant reprieves, pardons and commutations of sentence
is conferred upon the Governor by Section 8 of Article V of the Constitution of the State
of California.” (Pen. Code, § 4800.) California Constitution, article V, section 8,
subdivision (a), provides: “Subject to application procedures provided by statute [(Pen
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Code, §§ 4800–4813)], the Governor, on conditions the Governor deems proper, may
grant a reprieve, pardon, and commutation, after sentence, except in case of
impeachment. The Governor shall report to the Legislature each reprieve, pardon, and
commutation granted, stating the pertinent facts and the reasons for granting it. The
Governor may not grant a pardon or commutation to a person twice convicted of a felony
except on recommendation of the Supreme Court, 4 judges concurring.” “Commutation
is a reduction in punishment; a pardon is the remission of guilt and relief from the legal
consequences of the crime; and a reprieve is a temporary suspension of execution of
sentence. ([Pen. Code, ]§ 4853 [pardon]; Way v. Superior Court of San Diego County
(1977) 74 Cal.App.3d 165, 176 [].)” (Santos v. Brown (2015) 238 Cal.App.4th 398, 413-
414 (Santos).)
“The constitutionally authorized ‘application procedures’ for executive clemency
(Cal. Const., art. V, § 8, subd. (a)) are found in Penal Code sections 4800 to 4813.”
(Santos, supra, 238 Cal.App.4th at p. 414.)
“The power to grant clemency is vested in the executive branch [citations], and is
an act of mercy or grace.” (People v. Nash (2020) 52 Cal.App.5th 1041, 1082; Santos,
supra, 238 Cal.App.4th at p. 419; see also Ohio Adult Parole Auth. v. Woodard (1998)
523 U.S. 272, 280-281 (Ohio).)
III
Duty to Process Within a Certain Time
As a preliminary matter, we observe that neither section 8 of article V of the
California Constitution nor any provision of Penal Code sections 4800 to 4813 contains
an express requirement that the Governor process clemency applications within a
specified time frame. Indeed, section 8 of article V of the California Constitution and
Penal Code sections 4800 to 4813 do not require the Governor to issue decisions on
clemency applications at all. But Dilbert does not argue that the express language of the
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California constitution or statutes create a ministerial duty for the Governor to act on his
application within a “reasonable” time.
Instead, Dilbert depends on two theories. First, he argues that he has a liberty
interest and due process right under the Fourteenth Amendment of the United States
Constitution and article I, section 7 of the California Constitution to the relief he seeks.
Second, he suggests that the language of the instructions and solicitation of applications
by the Governor as indicated in those instructions created a duty for the Governor to
process the applications.
A. Due Process of Law
“The Fourteenth Amendment’s Due Process Clause protects persons against
deprivations of life, liberty, or property; and those who seek to invoke its procedural
protection must establish that one of these interests is at stake.” (Wilkinson v. Austin
(2005) 545 U.S. 209, 221.) While “[a] state-created right can, in some circumstances,
beget yet other rights to procedures essential to the realization of the parent right . . . , the
underlying right must have come into existence before it can trigger due process
protection.” (Conn. Bd. of Pardons v. Dumschat (1981) 452 U.S. 458, 463 (Dumschat).)
In Greenholtz v. Inmates of Nebraska Penal & Correctional Complex (1979) 442
U.S. 1, 7, the United States Supreme Court explained, “[t]here is no constitutional or
inherent right of a convicted person to be conditionally released before the expiration of a
valid sentence. The natural desire of an individual to be released is indistinguishable
from the initial resistance to being confined. But the conviction, with all its procedural
safeguards, has extinguished that liberty right: ‘[Given] a valid conviction, the criminal
defendant has been constitutionally deprived of his liberty.’ Meachum v. Fano, 427 U.S.
215, 224, (1976).” In Dumschat, supra, 452 U.S. at page 464, the Court stated,
“Greenholtz therefore compels the conclusion that an inmate has ‘no constitutional or
inherent right’ to commutation of his sentence.” (See also Ohio, supra, 523 U.S. at
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p. 283 [“There is thus no substantive expectation of clemency”]; In re Rosenkrantz
(2002) 29 Cal.4th 616, 663 [referring to the state constitutional authority for clemency at
issue in Ohio as “a similarly worded state constitutional provision regarding the pardon
authority of a governor”].) Because the defendant has no federal due process right to
clemency, he has no right “to procedures essential to the realization” of clemency.
(Dumschat, supra, 452 U.S. at p. 463; see also Santos, supra, at p. 421 [quoting Ohio,
supra, 523 U.S. at pp. 280-281, “[t]he due process the inmate sought ‘would be
inconsistent with the heart of executive clemency, which is to grant clemency as a matter
of grace, thus allowing the executive to consider a wide range of factors not
comprehended by earlier judicial proceedings and sentencing determinations’ ”].)
Dilbert fares no better under the California Constitution. Procedural due process
under the California Constitution, “extends potentially to any statutorily conferred
benefit, whether or not it can be properly construed as a liberty or property interest.”
(Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 Cal.App.4th 1534,
1562.) But, “it still requires the deprivation of some statutorily conferred benefit before it
is implicated.” (Ibid.) California’s “[e]xecutive clemency is an ad hoc ‘act of grace’ that
may be granted for any reason without reference to any standards.” (Santos, supra,
238 Cal.App.4th at p. 419.) Dilbert has pointed to nothing in the California Constitution,
article V, section 8; Penal Code section 4800-4813; or any other California law that
confers on him the benefit of either clemency or the consideration of an application for
clemency. Hence, we do not find that the Governor has violated Dilbert’s state due
process right by not yet issuing—and maybe never issuing—a determination on his
applications or reapplications.
B. Instructions Language
Dilbert cites no authority for his argument that application instructions can create
an obligation for the Governor to grant discretionary clemency within a certain amount of
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time. Additionally, none of the language in the instructions commits the Governor’s
office to acting on clemency applications within a specified time frame. Dilbert’s
argument that the instructions created a ministerial duty for the Governor to issue a
decision within an amorphous “reasonable” time therefore lacks merit.
DISPOSITION
We affirm the judgment. In consideration of Dilbert’s financial circumstances
costs are denied. (Cal. Rules of Court, rule 8.278(a)(5).)
HULL, J.
We concur:
EARL, P. J.
WISEMAN, J.
 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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