In re Foster

Filed 12/1/22 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
A160713
In re JEREMY J. FOSTER,
(Humboldt County
on Habeas Corpus. Super. Ct. No. CR2001183)
ORDER MODIFYING OPINION;
AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
BY THE COURT:
It is ordered that the opinion filed herein on November 1, 2022, be
modified as follows:
1. On page 7, in the first full paragraph, replace the last sentence
with the following two sentences:
Foster was sworn—the Board apparently reserving the right to ask him
questions, even though part of its stated reason for refusing to
subpoena witnesses was that the panel would not question him. As it
happened, no questions were posed.
1
2. On page 9, in the first full paragraph, insert the following after
the first sentence:
In the context of a parole rescission hearing, due process entitles an
inmate, at a minimum, to the procedural rights established by the
United States Supreme Court in Morrissey v. Brewer (1972) 408 U.S.
471. (In re Prewitt (1972) 8 Cal.3d 470, 476.) Additional grounds for a
due process claim may be found in the statutes and regulations
governing the Board. (In re Fain (1983) 139 Cal.App.3d 295, 307.)
3. On page 11, replace the first sentence in section B with the
following:
Respondent begins its discussion of due process with a lengthy
and multi-pronged argument that Foster forfeited his due process
challenge by failing to object at the rescission hearing to the denial of
his request to subpoena witnesses and by failing to follow his attorney’s
advice.
4. On pages 13-14, replace the first two sentences in section D with
the following:
The Board denied Foster’s request for witnesses on the ground
that no evidentiary witnesses could provide testimony that was
relevant to the Board’s evaluation of “the governor’s concerns in light of
the record available at the time of [Foster’s] grant of parole.” The
Board’s rationale was rejected in Johnson, supra, 35 Cal.App.4th at
pages 171-172.
2
5. On page 15, in the second full paragraph, at the end of the second
sentence, add the following as footnote 8, with the resulting renumbering of
subsequent footnotes:
The Board filed a petition for rehearing on the last possible day
(Cal. Rules of Court, rule 8.268(b)(1)(A)). In that petition, which we
denied, the Board raised arguments it had never made before. The
Board contended for the first time that Johnson did not apply to
Foster’s case because different regulations were in effect when Johnson
was decided, and the Board justified its refusal to call Foster’s
requested witnesses on the basis of a regulation that had never been
cited to us, let alone to Foster, as a reason to deny his request. Indeed,
counsel for the Board indicated that she was not even aware of the
regulation until after oral argument.
It is a fundamental principle of appellate practice that “[n]ew
arguments and authorities generally cannot be asserted for the first
time in a petition for rehearing and will be disregarded by the court.”
(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The
Rutter Group 2021) ¶ 12:25, citing Reynolds v. Bement (2005) 36
Cal.4th 1075, 1092, abrogated on other grounds by Martinez v. Combs
(2010) 49 Cal.4th 35.) “Counsel must ensure that all points are
properly presented in the original briefs and argument before the
matter is submitted . . ., for once the case is submitted, we assume that
counsel ‘have presented all the reasons upon which they rely for an
affirmance or a reversal of the judgment.’ ” (Alameda County
Management Employees Assn. v. Superior Court (2011) 195 Cal.App.4th
325, 338, fn. 10.) Although we have discretion to address arguments
first raised in a petition for rehearing, we decline to “ ‘ “submit to
3
piecemeal argument and will not consider on petition for rehearing
questions not previously raised” ’ absent extraordinary circumstances.”
(J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1230, fn. 5.)
There are no such circumstances here.
As to Johnson: we specifically raised the issue of the applicability
of Johnson in our order requesting informal opposition to Foster’s
petition. Yet the Board did not argue that changes in its regulations
made Johnson inapposite in its informal opposition to this court, or in
its return in response to our order to show cause, or even at oral
argument. Nor did the Board offer any reason for its failure to raise
the claimed inapplicability of the case until its last-minute petition for
rehearing. We disregard the Board’s untimely argument and express
no opinion as to its merit.
As to the newly-cited regulation: in its petition for rehearing, the
Board argued for the first time that it properly denied Foster’s request
because the witnesses Foster sought to subpoena did not meet the
Board’s regulatory definition of evidentiary witnesses. The Board cited
subdivision (b)(44) of section 2000 of title 15 of the California Code of
Regulations, a regulation that was not mentioned in the Notice of
Hearing Rights that was sent to Foster, or in the Board’s letter
informing Foster that his request for witnesses was denied. More
important with respect to the petition for rehearing, the regulation was
not cited in the Board’s informal opposition or in its return or at oral
argument. In opposing the Board’s petition for rehearing, Foster
argued that, contrary to the Board’s view, Dr. Arkowitz, Dr. Grasso,
and Dr. Khoo are evidentiary witnesses within the meaning of the
regulation, and that the Board’s interpretation of the regulation would
4
improperly alter or amend the governing statute (§ 2932, subd. (c)(3))
and would effectively eliminate an inmate’s right to call witnesses at
rescission hearings conducted as a result of referrals from the Governor
under section 3041.1. We disregard the Board’s untimely argument
and express no opinion as to its merit.
That said, it bears recalling that this matter arose from the
Board sending Foster a Notice of Hearing Rights informing him that
under section 2465 of title 15 of the California Code of Regulations he
had the right to call witnesses at his rescission hearing and to request
that witnesses be subpoenaed. The Board’s reading of its regulations
would result in a right that is hollow indeed. Beyond that, we find it
troubling that in seeking rehearing the Board sought to justify its
actions with regard to Foster’s parole rescission hearing by a belated
reference to a regulation of which its own attorneys were unaware.
And it is ironic that under these circumstances the Board asserted that
its “interpretation of its regulations . . . is entitled to deference,” when
up until then the Board had never seen fit to even hint at the existence
of this regulation either to Foster or this court, and its counsel
professed in the petition for rehearing to be “unaware of this definition”
even at oral argument.
6. On page 15, in the second full paragraph, delete the word “And”
at the beginning of the third sentence, so the sentence begins, “Under the
principles stated in Johnson . . . .”
7. On page 18, in the first sentence of the second full paragraph,
delete the words “in accordance with due process and the Board’s rules.”
5
8. On page 18, in the second sentence of the second full paragraph,
insert a comma after the third word (“remand”) and replace the words “would
be entitled under sections 2365 and 2668 of title 15 of the California Code of
Regulations” with “will be entitled.”
9. Respondent’s petition for rehearing is DENIED.
There is no change in the judgment.
Dated:______________________ ________________________
Richman, Acting P.J.
6
Court: Humboldt County Superior Court
Trial Judge: Hon. Gregory J. Elvine-Kreis
L. Richard Braucher, under appointment of the Court of Appeal, for
Petitioner
Rob Bonta, Attorney General; Phillip J. Lindsay, Assistant Attorney General;
Sara J. Romano, Jennifer G. Ross, Deputy Attorneys General, for Respondent
A160713, In re Jeremy J. Foster on Habeas Corpus
7
Filed 11/1/22 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re JEREMY J. FOSTER A160713
on Habeas Corpus.
(Humboldt County
Super. Ct. Nos. CR2001183,
CR974999)
Petitioner Jeremy J. Foster, a state prison inmate, was sentenced in
1998 to an indeterminate term of 23 years to life in state prison. After the
Board of Parole Hearings (the Board) found him suitable for parole in 2019,
the Governor referred the decision to the Board for en banc reconsideration
under Penal Code section 3041.1. The Board then ordered a rescission
hearing to determine whether the grant of parole was improvident, based on
the concerns raised by the Governor.
As was his right under the regulations governing parole rescission
hearings (and as he had been informed in writing by the Board), Foster
requested the presence of evidentiary witnesses at the rescission hearing,
including the author of the Comprehensive Risk Assessment that the
Governor quoted from and relied on in his referral letter. But the Board
denied Foster’s request for witnesses, and at the rescission hearing the panel
rescinded the grant of parole. Foster petitioned for a writ of habeas corpus,
raising as his primary argument that the Board improperly denied his
request to subpoena witnesses for the rescission hearing.
1
In requesting informal opposition to the petition, we specifically asked
respondent to address the apparent contradiction between the applicable
statutes and regulations, and the Board’s rationale for denying Foster’s
request, which was simply that “the Board does not subpoena witnesses for
rescission hearings conducted as a result of referrals from the Governor
under Penal Code section 3041.1.” We also noted that the Board’s rationale
had apparently been previously rejected in In re Johnson (1995) 35
Cal.App.4th 160, 170-172 (Johnson). We later issued an order to show cause,
and the matter has now been fully briefed and argued.
We conclude that the Board’s denial of Foster’s request to present
witnesses violated the Board’s own procedural rules as well as Foster’s due
process rights. We therefore vacate the Board’s decision to rescind its grant
of parole, and remand to the Board to conduct a new rescission hearing.
FACTUAL AND PROCEDURAL BACKGROUND
A. Commitment Offenses, Conviction, and Sentencing
We draw our account of Foster’s commitment offenses, plea, and
sentencing from our opinion affirming the judgment. (People v. Jeremy John
Foster (Oct. 20, 1999, A083699 & A086456) [nonpub. opn.].)
On October 20, 1997, two 14-year-old girls were walking toward a
wooded area near their school when Foster, then 21 years old, approached
them and drew a knife. He told them to get on the ground and not try to run
or he would kill or stab them. When one of the girls started to run, he
grabbed her and flung her to the ground. He ordered the girls to lie face
down on the ground and told them that if they listened to him, “ ‘they might
make it out of this.’ ” Then he had them get up, ordered them to look
forward, and he walked them into the woods, where he told them to remove
all their clothes and had them lie face down on the ground.
2
Foster poked them in the buttocks with his knife and told them to move
where he wanted them. He made one girl spread her legs, then pushed his
fingers into her vagina. Then he penetrated her with “something else” and
told the other girl that if she made any noise, he would put his knife into her,
too. He then removed the knife and had the first girl touch his penis and told
her to put it into herself. He pushed his penis in and out of her vagina, and
made her touch it again after taking it out. Then he had the other girl touch
his penis and put it inside her. He could not fully penetrate her, and he
stopped. Foster then told the girls to count to 100, and that if they got up
before then he would kill them. He fled the scene.
In June 1998, Foster entered a negotiated plea of guilty to two counts of
forcible sexual penetration with a foreign object, one count for each victim.
(Pen. Code,1 § 289, subd. (a).). He was sentenced to 15 years to life on one of
the counts, with special allegations including serious-felony status (§ 1192.7,
subd. (c)(23)) and use of a deadly weapon, a knife, within the meaning of
section 667.61, subdivisions (b) and (e)(4) (the “one-strike” law). He was
sentenced to a fully consecutive upper term of eight years on the second
count, for a total of 23 years to life.
B. February 2019 Parole Hearing and Subsequent Proceedings
On February 12, 2019, at a parole suitability hearing held under the
statutes governing inmates serving indeterminate sentences (§ 3041), the
Board found that Foster was suitable for parole and did not pose an
unreasonable current risk of danger if released at that time.
1 All statutory references are to the Penal Code unless otherwise
stated.
3
Governor Gavin Newsom requested reconsideration of the decision to
grant Foster parole, as he is authorized to do by section 3041.1.2 In his
request, the Governor commended Foster for making progress towards
rehabilitation, but stated that he was not convinced Foster was ready for
release. The Governor was not convinced that Foster had “properly
addressed the factors that led him to perpetrate such sexual violence”; was
“troubled” by Foster’s “continued substance abuse and misconduct in prison,”
including “disrespecting staff on multiple occasions and several violations
related to drug and alcohol abuse”; and in light of Foster’s recent sobriety,
was concerned about Foster’s “risk of relapse and its impact on his potential
for future violence.”3 The Governor wrote that his concerns were supported
by the Comprehensive Risk Assessment that had been prepared by forensic
psychologist Steven Arkowitz. The Governor stated, “In finding that Mr.
Foster represents a moderate risk of future violence, the evaluating
psychologist noted that, while Mr. Foster has taken responsibility for his
actions in the life crime and expressed remorse, there ‘is a significant sexual
component that Mr. Foster seems to have not yet fully addressed.’ ” The
2 Section 3041.1, subdivision (a) provides, “Any time before an inmate’s
release, the Governor may request review of a decision by a parole authority
concerning the grant or denial of parole to any inmate in a state prison. The
Governor shall state the reason or reasons for the request, and whether the
request is based on a public safety concern, a concern that the gravity of
current or past convicted offenses may have been given inadequate
consideration, or on other factors.”
3 The Governor noted in his referral letter that Foster “admitted to the
Board that his crimes were a result of self-medication with marijuana and
methamphetamines. He acknowledged alcohol use until 2007 and marijuana
use until four years ago. Mr. Foster told commissioners that it was only
when he lost visits with his father as a result of his 2015 rule violation that
he finally stopped using.”
4
Governor further wrote: “The psychologist wrote in 2018[4] that while Mr.
Foster has recognized his substance abuse problems, he ‘needs to continue to
address and strengthen his plan to avoid drug and alcohol relapse.’ The
psychologist found that ‘Mr. Foster has not consistently complied with
supervision or treatment during his incarceration,’ and noted that ‘it is not
clear that Mr. Foster would be able to fully comply with supervision and
programming requirements in the community.’ The psychologist concluded,
‘Mr. Foster has struggled with emotional and behavioral instability
throughout his life. While he has made some progress in recent years, he has
not yet sustained his gains towards greater maturity and personal
responsibility.’ ”
The Board ordered a rescission hearing, which was set for October 8,
2019.
In July 2019, Foster received a three-page form from the Board entitled
“Notice of Hearing Rights – Parole Consideration Hearing/Rescission
Hearing.”5 Enumerated paragraph 5 of the notice bears the bold-faced
heading “Witnesses,” and states: “You may not call witnesses at a parole
consideration hearing. [Citation.] At a rescission hearing you may call
evidentiary witnesses and may request that witnesses (including adverse
witnesses) be subpoenaed. (15 CCR § 2465.)” Foster’s signature appears on
the form under a statement that he read and understood his rights, and the
form is countersigned by a person identified as a “correctional counselor.”
4 The report was actually dated June 25, 2017.
The footer on the form is “BPH 1002 Notice of Hearing Rights Parole
5
Consideration/RESC (Rev. 01/19).” The form appears to have been prepared
for Foster, since his name and CDCR number are printed at the bottom of
each page of the form, and his CDCR number is preprinted on the signature
line at the end of the document.
5
On August 9, 2019, Foster wrote to the Board asking that four
evidentiary witnesses be subpoenaed to attend the hearing: Dr. Arkowitz, as
the author of the 2017 Comprehensive Risk Assessment that was discussed
in the Governor’s referral letter; Dr. Grasso, a treating staff psychologist at
the California Men’s Colony who issued a laudatory chronology in January
2019; Dr. Khoo, a treating psychiatrist; and Governor Newsom, as author of
the letter initiating the rescission process. Foster stated that all the
witnesses “have information critical in my opportunity to present evidence,”
and that each of them “has made clear and documented statements, either
supportive or adverse to my previous grant of parole.”6
A staff attorney for the Board responded to Foster’s letter on August
29, 2019, stating that the request for witnesses was denied. The letter
explained, “Please note, the Board does not subpoena witnesses for rescission
hearings conducted as a result of referrals from the Governor under Penal
Code section 3041.1. The focus of the rescission hearing will be evaluating
the Governor’s concerns in light of the record available at the time of your
February 12, 2019 grant of parole. The hearing panel will not be gathering
new evidence during the hearing, such as from witness testimony or from
asking you questions. Rather, you, your attorney, and the District Attorney
may make a statement to the hearing panel addressing the concerns
highlighted in the Governor’s . . . referral letter . . . before the hearing panel
issues its decision regarding whether there is good cause to rescind your
grant of parole based on the Governor’s concerns. Evidentiary witnesses are
6 Foster stated in his letter that he had previously contacted his
appointed attorney, his assigned staff assistant, and the Board’s “Lifer desk”
at the California Men’s Colony – East, where he was incarcerated, to
determine how to exercise his right to call witnesses, but to no avail.
6
not relevant for conducting the rescission hearing and making the necessary
determination.”
Foster attended the October 8, 2019 rescission hearing with his
appointed counsel. At the beginning of the hearing, the presiding
commissioner stated that the panel had reviewed Foster’s “central file,”
including the transcript of the hearing at which Foster was granted parole
and the Governor’s referral to the Board. The presiding commissioner said,
“Okay. So it’s mostly a paper review. So, . . . as we read through the, um,
information, just in case we ask you a question, we’re probably not going to, I
want to go ahead and swear you in.” Foster was sworn, but no questions
were posed to him.
With the preliminaries completed, the presiding commissioner read
portions of the Governor’s letter, noting that the Governor had identified
areas in which the evaluation by Dr. Arkowitz supported his concerns;
summarized Foster’s prison disciplinary record; and read from, summarized,
and described portions of the transcript from the February 2019 hearing at
which parole had been granted. After Foster’s attorney made a closing
statement, the panel recessed for deliberation. The hearing, including
preliminary advisements, had lasted 21 minutes. The panel returned after
short deliberations to announce its decision.
The presiding commissioner stated there was good cause to rescind
Foster’s parole, and continued: “We reviewed the issues raised by the
Governor’s side, in the Governor’s letter, dated May 15, 2019, and based on
our review, we have determined that this was an improvident grant. We
reviewed the information. Um, there was information in regards to the three
areas, um, of concern, um that Mr. Foster had not properly addressed the
factors that led him to perpetrate with [sic] such extreme violence. Uh, upon
7
review, we determined that the granting Panel gave insufficient weight to
this concern, as noted by the Governor. Um, we also reviewed the rule
violations, um, those reports that’s the last was in 2015, but went from ’14,
two in ’14, one in ’13, one in ’12, one at ’10, 70706202 [sic], and 2000. And we
determined that the granting Panel gave insufficient weight to this concern
as noted by the Governor. Also, um, the last area of concern was Mr. Foster’s
risk for relapse and its impact on his potential for future violence. And in our
record review, we did determine that the granting Panel gave insufficient
weight to this concern, as noted by the Governor[,] as there was no formal
discussion about how relapse may impact his potential for violence. And
certainly without reviewing, um, that and even exploring that area, um, Mr.
Foster remains an unreasonable risk to the public.”
In March 2020, Foster petitioned the superior court for a writ of habeas
corpus, arguing that the Board’s refusal to subpoena witnesses for the
rescission hearing was a violation of his due process rights. In July 2020, the
superior court denied the petition as moot, apparently because Foster had
been denied parole at a suitability hearing held in June 2020.
In August 2020, Foster filed a petition for writ of habeas corpus in this
court. After we issued our order to show cause, Foster was denied parole at a
further suitability hearing held in August 2021.
DISCUSSION
A. Applicable Law
We summarized the general legal standards in In re Stoneroad (2013)
215 Cal.App.4th 596: “The Board’s parole authority is governed by a body of
statutes and regulations as mandated by the Legislature, most notably Penal
Code section 3041 (section 3041) and title 15, section 2402, of the California
Code of Regulations. ‘ “Subdivision (b) of section 3041 provides that a release
8
date must be set ‘unless [the Board] determines that the gravity of the
current convicted offense or offenses, or the timing and gravity of the current
or past convicted offense or offenses, is such that consideration of the public
safety requires a more lengthy period of incarceration for this individual,’ and
mandates that the Board ‘normally’ set a parole date for an eligible inmate,
and must do so unless it determines [that] an inmate poses a current threat
to public safety.” ’ [Citations.] As a result, parole applicants have a ‘due
process liberty interest in parole’ and ‘an expectation that they will be
granted parole unless the Board finds, in the exercise of its discretion, that
they are unsuitable for parole in light of the circumstances specified by
statute and by regulation.’ [Citations.]” (Id. at p. 615.)
The Board’s broad discretion in parole matters “is subject to the
prisoner’s right to procedural due process. [Citations.]” (Johnson, supra, 35
Cal.App.4th at p. 170.) In Johnson, Division Four of this Court discussed the
specific procedures attendant to a parole rescission hearing: “Both the Penal
Code and the regulations implementing those provisions promulgated by the
Board confer very specific procedural rights on the prisoner at the rescission
hearing. [Citations.] Included is the right to request the presence of
witnesses . . . . (§ 3041.5; Cal. Code Regs., tit. 15, §§ 2465, 2668.) The
prisoner’s witnesses ‘shall’ be called unless the Board ‘has specific reasons to
deny this request’ and advises the prisoner of those reasons in writing.
(§ 2932, subd.(c)(3); see § 3041.5[7] . . . .)” (Johnson, supra, 35 Cal.App.4th at
p. 170.)
7 Section 3041.5, subdivision (a)(5) states that in a hearing for the
purpose of rescinding parole, an inmate is afforded the rights set forth in
section 2932, subdivision (c)(3).
9
The very regulation that was cited to Foster in his Notice of Hearing
Rights under the heading “Witnesses,” states in its present version, “The
prisoner shall have the right to request the presence of evidentiary witnesses
at a rescission hearing. The witnesses shall be called unless the hearing
panel has specific reason to deny the request. Witnesses shall be screened in
accordance with the procedures of § 2668. The prisoner may request
subpoenas . . . as provided in §§ 2675-2682. If denied, the specific reasons for
denial shall be documented and a copy of the document given to the prisoner.
During the hearing, the prisoner has the right, under the direction of the
hearing panel, to question all witnesses.” (Cal. Code Regs., tit. 15, § 2465,
subd. (c).)
The regulations further provide that a request for witnesses “must be
made sufficiently ahead of the hearing to notify the witnesses and to make
arrangements to have them present at the hearing.” (Cal. Code Regs., tit. 15,
§ 2668, subd. (a)(1).) With respect to evidentiary witnesses, the regulations
state: “Staff shall determine that the testimony of an evidentiary witness is
clearly irrelevant before refusing to call the witness. (Examples of irrelevant
witnesses include a public official having no knowledge of the violation or
witness with no knowledge or evidence in mitigation.) A requested
evidentiary witness should ordinarily be notified to attend even though the
testimony may be cumulative, such as where several persons witnessed the
incident.” (Id., § 2668, subd. (b)(1), italics added.)
The regulations further provide for subpoenas, if necessary. (“A
subpoena . . . shall be issued when it is necessary to secure the presence of a
witness . . . for a proceeding. Subpoenas shall be issued for evidence that is
relevant and material.” (Cal. Code Regs., tit. 15, § 2677, subd. (a).)
“Requests for subpoenas for witnesses shall be screened in accordance with
10
the procedures of § 2668. . . . [¶] . . . Requests for subpoenas for evidentiary
witnesses shall ordinarily be granted even though the testimony may be
cumulative . . . .” (Id., § 2677, subd. (b).)
We review a due process violation at a parole hearing under the
“harmless beyond a reasonable doubt” standard set forth in Chapman v.
California (1967) 386 U.S. 18 (Chapman). (Johnson, supra, 35 Cal.App.4th
at p. 172.)
B. Forfeiture
Respondent’s first argument is that Foster forfeited his due process
challenge by failing to object at the rescission hearing to the denial of his
request to subpoena witnesses. Respondent asserts that even though the
Board had rejected his request in writing, Foster was required to raise the
issue at the hearing to preserve his request. Respondent’s argument relies on
language in the regulation that provides inmates the “right to request the
presence of evidentiary witnesses at a rescission hearing.” (Cal. Code Regs.,
tit. 15, § 2465, subd. (c), italics added.) This misreads the regulation. The
phrase “at a rescission hearing” does not impose any requirement as to when
the request must be made. Instead, it reflects where the witnesses will be
present. This commonsense reading is reflected in another regulation stating
that an inmate’s request for witnesses “must be made sufficiently ahead of
the hearing to notify the witnesses and to make arrangements to have them
present at the hearing” (id., § 2668, subd. (a)(1), italics added), and that if the
Board refuses to call a witness, the inmate “shall be told of the refusal prior
to the hearing.” (Id., § 2668, subd. (b), italics added.)
Respondent argues that had Foster objected to the denial of his request
for witnesses at the rescission hearing the Board could have considered it and
decided whether to request subpoenas at that time. (See Cal. Code Regs., tit.
11
15, § 2677, subd. (d) [authorizing the rescission panel to request subpoenas
“as they deem necessary” after the hearing has commenced, with the hearing
to be continued and rescheduled].) Perhaps, but any objection here would
have been futile given the Board’s earlier categorical rejection of Foster’s
request: Foster was informed unequivocally that “the Board does not
subpoena witnesses for rescission hearings conducted as a result of referrals
from the Governor under Penal Code section 3041.1.” In any event, we see
nothing in the regulations that requires a renewed request for witnesses at a
hearing to preserve a challenge when the request has previously been made
and denied.
Nor are we persuaded by respondent’s theory that Foster forfeited his
due process challenge by not following his attorney’s advice. In September
2019, after the Board denied Foster’s request to subpoena witnesses, Foster’s
attorney wrote to him that she had been advised that Foster must “go
through your Correctional Counselor for your requests for subpoenas.” Even
if Foster did not follow his attorney’s guidance, as respondent asserts,
respondent fails to explain why that would constitute a forfeiture of Foster’s
challenge to the Board’s denial of his request. Nor do the authorities on
which respondent relies bear on this issue; they address the principle that an
appellate court will not consider a claim of error that could have been, but
was not, raised in the trial court. (See People v. Stowell (2003) 31 Cal.4th
1107, 1114, citing People v. Vera (1997) 15 Cal.4th 269, 276.) That is not this
case.
In sum, because Foster requested the Board to subpoena witnesses for
the rescission hearing and the Board unequivocally denied his request, there
was nothing more that Foster had to do to preserve his claim of error.
12
C. Mootness
Likewise, we find unpersuasive respondent’s contention that Foster’s
petition is moot because after the October 2019 rescission hearing he received
two further parole suitability hearings where he had the opportunity to
present new information to the Board. Respondent’s position assumes that
because Foster had the opportunity to present evidence from his requested
witnesses to rebut the Governor’s concerns there is no effective relief that
this court could provide him. (See Simi Corp. v. Garamendi (2003) 109
Cal.App.4th 1496, 1503 [“A case becomes moot when a court ruling can have
no practical impact or cannot provide the parties with effective relief”].)
But a suitability hearing is not the same as a rescission hearing.
Although Foster had the opportunity at his subsequent suitability hearings
to present documentary evidence from the people he sought to call as
witnesses at the rescission hearing (Cal. Code Regs., tit. 15, § 2249), he did
not have the right to call them as witnesses to testify and to question them.
(See § 3041.5, subd. (a)(5) [inmates at rescission hearings have the rights set
forth in § 2932, subd. (c)(3) & (4)]; see also Cal. Code. Regs., tit. 15, § 2665 [at
rescission hearing, “[a]ll evidence relevant to the charges or disposition is
admissible”] & §§ 2666-2682 [concerning evidence and subpoenas in the
context of rescission hearings].)
Because this court can provide Foster with effective relief by requiring
the Board to conduct a new recission hearing, Foster’s petition is not moot.
We now turn to the merits of Foster’s claim that the Board should have
granted his request for witnesses.
D. Denial of Request to Present Witnesses
The Board denied Foster’s request for witnesses on the basis of its
determination that no evidentiary witnesses could provide testimony that
13
was relevant to the Board’s evaluation of “the governor’s concerns in light of
the record available at the time of [his] February 12, 2019 grant of parole.”
The Board’s rationale was rejected in Johnson, supra, 35 Cal.App.4th at page
172. Although the facts of Johnson are not identical to the facts before us,
the facts here require the same outcome.
In Johnson, the petitioner had been found suitable for parole at a
December 1981 hearing. (Johnson, supra, 35 Cal.App.4th at p. 163.) Years
later, shortly before Johnson was scheduled to be released on parole, the
Governor requested the Board to review its decision en banc, citing concerns
about public safety and the gravity of Johnson’s commitment offenses. (Ibid.)
The Board ordered a rescission hearing. Among the reasons for its decision to
order the hearing were the concerns expressed by the Governor in his letter
requesting en banc review and the fact that “a clinical evaluation of Johnson
in September of 1981 had concluded that Johnson’s potential for violence on
parole was unpredictable.” (Id. at pp. 163-164, 165.)
Johnson, who had been released from prison pending the rescission
hearing, was returned to prison about a year later, after which a rescission
hearing was held. (Johnson, supra, 35 Cal.App.4th at p. 164.) The Board
denied Johnson’s request to present witnesses at the rescission hearing,
stating, “ ‘this panel is considering this as a fact-finding phase of the hearing
related to written evidence and the record that was considered . . . by the
1981 hearing panel that granted parole.’ ” (Id. at p. 165.)
The Board rescinded parole, based on its finding that the granting
panel “gave an improvident grant by not giving adequate weight to all the
available issues,” specifically, the clinical evaluation “which indicated to the
Board that Johnson’s release would pose a danger to public safety,” and the
14
gravity of Johnson’s crimes. (Johnson, supra, 35 Cal.App.4th at pp. 165,
168.)
In Johnson, the Court of Appeal found that the Board improperly
denied Johnson’s request for witnesses. The sole reason the Board gave for
denying the request was incorrect as a matter of fact, because the Board did
not confine its review to the record of the 1981 hearing. (Johnson, supra, 35
Cal.App.4th at p. 171.) The court added, “But even if the Board had limited
its review to the record of the 1981 hearing, Johnson should have been
permitted to call witnesses whose testimony would have been relevant to
understanding or interpreting that record, including the [clinical evaluation]
the Board found so important.” (Ibid.) The Court of Appeal concluded that in
denying Johnson’s request for witnesses the Board violated its own rules and
“the fundamental tenets of due process which apply to the rescission
hearing.” (Id. at pp. 171-172.)
The Board here erred in summarily denying Foster’s request for
witnesses with the statement that “the Board does not subpoena witnesses
for rescission hearings conducted as a result of referrals from the Governor
under Penal Code section 3041.1,” and in asserting “[e]videntiary witnesses
are not relevant for conducting the rescission hearing and making the
necessary determination.” Just as in Johnson, the Board violated its own
rules and the tenets of due process in denying Foster’s request to call
witnesses at his rescission hearing. And under the principles stated in
Johnson, Foster should have been permitted to call witnesses whose
testimony would have been relevant to understanding or interpreting the
15
record before the February 2019 hearing, including Dr. Arkowitz, Dr. Grasso,
and Dr. Khoo.8
We cannot find this error to be harmless beyond a reasonable doubt.
The question we must consider under the Chapman standard is whether the
decision to rescind Foster’s parole made at the October 2019 hearing “ ‘was
surely unattributable to’ ” the Board’s error in refusing Foster’s request to
call witnesses. (See People v. Quartermain (1997) 16 Cal.4th 600, 621
[explaining the Chapman standard as it applies to a guilty verdict at trial].)
Two of the witnesses Foster sought to call were Dr. Arkowitz, who
wrote the Comprehensive Risk Assessment that was the principal focus of the
Governor’s referral letter, and Dr. Grasso, a treating staff psychologist whose
“laudatory chrono” was also part of the record. Dr. Arkowitz’s evaluation was
written and approved in June 2017 (not in 2018, as the Governor mistakenly
stated in his referral). Dr. Grasso’s chrono was dated January 7, 2019, more
than a year and a half later. Dr. Grasso wrote that Foster “has been on my
caseload for approximately 13 months” and that he had been meeting with
Foster in individual sessions once a week for approximately 30 minutes. Dr.
Grasso described Foster as “a highly intelligent, articulate individual who
has made every effort to turn his life around and to be someone better than
the person he was when he initially came to prison. He demonstrates
remorse for his offense and accepts responsibility for what he has done and
the harm he has caused to others. It is apparent to me that he has done
considerable soul-searching and introspection and made a concerted effort to
8 Foster does not press his claim for the Governor’s testimony, with
apparent good reason. (See Cal. Code Regs., tit. 15, § 2668, subd. (b)(1)
[recognizing that public officials are ordinarily “irrelevant” witnesses in
rescission hearings].) We by no means suggest that such testimony would be
proper at a rescission hearing on remand.
16
almost literally change his personality to someone that himself, his family,
and society can be proud of. It has been a pleasure working with him and I
anticipate nothing but success for him in the future.”
The passage of time since Dr. Arkowitz had prepared his report was an
issue raised by the commissioners at the hearing on February 12, 2019 when
Foster was found suitable for parole. The presiding commissioner remarked
that Dr. Arkowitz’s report was “one and a half years old” and that it was
“without benefit of the additional self-help programming that you’ve done . . .
since that time.” And at the conclusion of that hearing, in announcing the
Board’s decision that Foster was suitable for parole, the presiding
commissioner stated, “We do want to note that the Comprehensive Risk
Assessment, uh, prepared by Dr. Arkowitz finds that you present a
statistically moderate risk of re-offense in the free community. But we note
that this, um, is almost two years old and we believe that with your
continued positive behavior and your continued self-help programming, that
it may have dropped to a low if it was done, uh, more recently.”
It does not require any stretch of the imagination to suppose that if Dr.
Arkowitz had been called as a witness at the rescission hearing to testify
about the Comprehensive Risk Assessment that had been of concern to the
Governor, he would have been asked to discuss the conclusions he reached
back in June 2017 in light of Dr. Grasso’s January 2019 chrono.
We have no basis to determine what result the panel might have
reached had it heard testimony from Dr. Arkowitz, or the other professionals
whom Foster sought to call as witnesses, especially in view of the opacity of
the panel’s decision, which is highly conclusory and largely restates
information in the Governor’s referral letter. Nor do we suggest what the
outcome of the rescission hearing should have been. But we cannot say
17
beyond a reasonable doubt that Foster’s parole would have been rescinded in
the absence of error.
In short, the Board, following its rules, regulations, and procedures,
found Foster was suitable for parole. The Governor, as was his right, asked
the Board to reconsider. The Board ordered a rescission hearing and gave
Foster written notice of his hearing rights, including the right to call
evidentiary witnesses to testify. But when Foster requested evidentiary
witnesses, the Board denied his request, contrary to the applicable
regulations.
The appropriate remedy here, as in Johnson, is to order the Board to
conduct a new rescission hearing in accordance with due process and the
Board’s rules. (Johnson, supra, 35 Cal.App.4th at p. 172.) If on remand the
Board limits its review to the evidence available at the February 2019 parole
hearing, then Foster would be entitled under sections 2465 and 2668 of title
15 of the California Code of Regulations to call witnesses who can present
testimony relevant to a reconsideration of the evidence presented at that
hearing, including at a minimum Dr. Arkowitz, Dr. Grasso, and Dr. Khoo.9
We need not reach the other issues raised by Foster in his petition.
9 As was the case in Johnson, we “cannot spell out which . . . witnesses
would present relevant testimony for the rescission hearing [because] [t]he
answer depends on the evidence the Board elects to review.” (Johnson,
supra, 35 Cal.App.4th at p. 172, fn. 10; see also Cal. Code Regs., tit. 15,
§ 2665 [“All evidence relevant to the charges or disposition is admissible in
parole postponement, rescission and revocation proceedings”].) If the Board
considers matters that have occurred since the February 2019 hearing, “the
scope of relevant testimony would be considerably broadened.” (Johnson,
supra, at p. 172, fn. 10.)
18
DISPOSITION
The October 8, 2019 decision of the Board to rescind the February 12,
2019 grant of parole is hereby vacated. The matter is remanded to the Board
to conduct a new rescission hearing consistent with this opinion.
19
_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A160713, In re Jeremy J. Foster on Habeas Corpus
20
Court: Humboldt County Superior Court
Trial Judge: Hon. Gregory J. Elvine-Kreis
L. Richard Braucher, under appointment of the Court of Appeal, for
Petitioner
Rob Bonta, Attorney General; Phillip J. Lindsay, Assistant Attorney General;
Sara J. Romano, Jennifer G. Ross, Deputy Attorneys General, for Respondent
A160713, In re Jeremy J. Foster on Habeas Corpus
21