Case Name:   Ernest Brown v. Jennifer Shaffer

Case No.:       1-14-CV-258954

Respondent Jennifer Shaffer (“Shaffer”), the executive officer of the Board of Parole Hearings (the “Board”), demurs to the petition for writ of mandate of petitioner Ernest Brown (“Brown”). Shaffer demurs to the petition on the ground of failure to state facts sufficient to show an entitlement to writ relief.

Request for Judicial Notice

Shaffer requests that the Court take judicial notice of the following: (1) Brown’s “Chronological History,” (2) the “Stipulation and Order Regarding Settlement,” and (3) the March 17, 2014 memorandum issued by Shaffer to officials at the Board.

 

Brown’s “Chronological History” consists of handwritten entries, detailing the dates and short descriptions of administrative actions concerning Brown taken by the Department of Corrections since January 4, 2000. Shaffer’s memorandum contains information concerning her interpretation of the “Stipulation and Order Regarding Settlement” and provides instructions concerning its implementation. The information contained in both of these documents cannot be easily verified by reference to sources readily accessible to the Court. (See Evid. Code, § 452, subd. (h).) Thus, the request for judicial notice as to Brown’s “Chronological History” and Shaffer’s memorandum is DENIED.

The “Stipulation and Order Regarding Settlement” is relevant to the petition and is a court record. (See Evid. Code, § 452, subd. (d).) Accordingly, the request for judicial notice is GRANTED as to the “Stipulation and Order Regarding Settlement.”

Timeliness of Petition

Shaffer contends that Brown’s petition is untimely because he could have raised his claim at any time since he was first imprisoned nearly twenty years ago. In opposition, Brown states that his petition is not untimely, but does not explain why he believes this to be the case.

There is no statutory period which specifically governs the timeliness of a petition for a writ of mandate. (See People v. Superior Court (1988) 200 Cal.App.3d 491, 495.) Thus, in determining whether a petition is timely, courts apply the equitable doctrine of laches. (Id. at p. 496; see also Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529; H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368.) The basic elements of this doctrine are: (1) an omission to assert a right; (2) a delay in the assertion of the right for some appreciable period; and (3) circumstances which would cause prejudice to an adverse party if assertion of the right is permitted. (See Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 296.) Laches may be raised by a general demurrer where the facts showing laches appear on the face of the complaint. (Id.)

 

Here, a review of the face of the petition discloses that Brown has waited almost twenty years from the date of his incarceration and almost two years from his last probation hearing to bring this writ. Nevertheless, Shaffer does not identify any allegations that would suggest the Board is prejudiced by the delay. Accordingly, Shaffer fails to establish that the petition is untimely.

 

Plain, Speedy, Adequate Alternative Remedy
Shaffer contends that Brown fails to properly allege that no alternative plain, speedy, and adequate remedy at law exists. In opposition, Brown conclusorily states that he does not have an alternative, plain, speedy and adequate remedy at law.

 

A writ of mandate may not be issued if there is an alternative plain, speedy, and adequate remedy, in the ordinary course of law. (See Code Civ. Proc., § 1086.) The petitioner bears the burden of making the showing that there is no such alternative remedy. (See Phelan v. Superior Court (1950) 35 Cal.2d 363, 366.) A general allegation that a petitioner has no plain, speedy and adequate remedy without reference to any facts is not sufficient to sustain this burden. (Id. at p. 370.)

 

Here, Brown alleges: “Petitioner believes he is entitled to use the mandate process in order to have the BPH Executive Officer Jennifer Shaffer, under court mandate to strictly follow the term setting laws as written, and to set this Petitioner’s mandatory maximum ‘primary term’ ASAP.” (Petition, p. 7.) These conclusory allegations do not reference any facts indicating that Brown has no alternative plain, speedy and adequate remedy at law. Therefore, Brown fails to meet his burden.

 

Ministerial Duty

 

Brown alleges that under In re Rodriguez (1975) 14 Cal.3d 639 (hereinafter, “Rodriguez”), Shaffer is required to set a tentative parole date once he serves the minimum term of his sentence. In her demurrer, Shaffer explains that Rodriguez only applies to prisoners sentenced under the Indeterminate Sentence Law (“ISL”). She asserts that since the passage of the Determinate Sentence Law (“DSL”), the Board may in the exercise of its discretion refuse to set a tentative parole date. (See In re Dannenberg (2005) 35 Cal.4th 1061, disapproved on another ground by In re Lawrence (2008) 44 Cal.4th 1181, 1191 (hereinafter, “Dannenberg”.) She reasons that a writ of mandate cannot compel the Board to set such a date as the Board’s refusal to set a parole date is a discretionary act, rather than a ministerial one.

 

            A writ of mandate may not compel an official to exercise its discretion in a particular matter. (See Morris v. Harper (2001) 94 Cal.App.4th 52, 62.) Generally, a writ of mandate may only be employed to compel “‘an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act’s propriety or impropriety, when a given set of facts exists.’ [Citation.] ” (Id.)

 

Under the ISL, responsibility for determining the actual length of time a convicted prisoner would spend in prison or on parole was vested in what is now the Board. (Rodriguez, supra, 14 Cal.3d at p. 645.) In Rodriguez, the Court determined that as a matter of practice, the Board would only fix the length of a prisoner’s sentence in conjunction with a grant of parole. (Id. at p. 646.) In other words, if a prisoner was not granted parole, the Board would not set the exact time a prisoner would remain in jail. (Id.) The Rodriguez Court determined that this practice was unconstitutional. (Id. at pp. 653-654.) It reasoned that the determination of the length of a prisoner’s sentence must be based on circumstances existing at the time of the offense. (Id. at p. 652.) In contrast, eligibility for parole is based on the recognition of a prisoner’s good conduct in prison, his efforts toward rehabilitation, and his readiness to lead a crime-free life in society. (Id.)  Thus, to ensure that the law passed constitutional muster, the Court construed the ISL to require the Board to set the actual maximum terms for all inmates, proportionate to their individual culpability. (Id. at p. 653.)  Under this interpretation, once a prisoner completed the minimum term of his or her sentence, the Board was required to set a maximum term. (Id.)A prisoner who made good progress in prison could still be granted parole before the end of the maximum term set by the Board, but in any event the prisoner had to be released upon the expiration of that maximum term. (Id. at p. 652.)

 

In Dannenberg, the Supreme Court explained that, due to the passage of the DSL, the requirement that the Board set a maximum term no longer applies. (Dannenberg, supra, 35 Cal.4th at p. 1080.) The DSL now provides that the Board shall set a release date unless it determines that public safety requires a lengthier period of incarceration, and a parole date, therefore, cannot be fixed at the initial parole consideration hearing. (Pen. Code, § 3041, subd. (b).) The Court interpreted this provision to provide the Board with the discretion to deny parole without deciding when the inmate will be released and without considering how the prisoner’s actual period of confinement may compare with those served by others who committed similar crimes. (Dannenberg, supra, 35 Cal.4th at p. 1080.)

 

Here, pursuant to Penal Code section 3041, the Board exercised its discretion to deny Brown parole for five years without considering how his term of confinement compares with other prisoners. As this decision constituted an exercise of the Board’s discretion, the Court may not compel the Board to set a tentative release date via a writ of mandate. (See Morris, supra, 94 Cal.App.4th at p. 62.)

 

Enforcement of Settlement Agreement

 

Brown contends that he is entitled to an immediate hearing to set a release date pursuant to a 2013 settlement the Board entered into with another prisoner. He asserts that under the terms of the settlement, the Board agreed to set a release date for all inmates sentenced to an indeterminate life term at their initial parole consideration hearing. In opposition, Shaffer acknowledges the existence of the settlement, but indicates that the settlement expressly states that it would not be retroactive.

 

The agreement provides, in pertinent part: “For any life term inmate who has already had his or her initial parole consideration hearing without a calculation of the base term and adjusted base term, the Board shall calculate the base term and adjusted base term at the inmate’s next scheduled parole consideration hearing….” (See Request for Judicial Notice, Ex. B [emphasis added].) In accordance with this provision, Shaffer represents that Brown will receive a release date at his next parole consideration hearing, scheduled to take place in 2017. Accordingly, under the terms of this settlement, Brown is not entitled to an immediate hearing to set a release date.

 

Based on the foregoing, the petition fails to state facts indicating that Brown has no plain, speedy, and adequate remedy at law and that Shaffer has a duty to set a tentative parole date once Brown serves the minimum term of his sentence. Brown provides no indication in his opposing papers how the foregoing deficiencies can be remedied by amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [burden on plaintiff to establish he can amend pleading and how amendment changes legal effect of pleading].) Accordingly, the demurrer to Brown’s petition for writ of mandate is SUSTAINED WITHOUT LEAVE TO AMEND.