In re Porter

Filed 11/29/05 In re Porter CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re THOMAS PORTER On Habeas Corpus.

F046179 (Super. Ct. No. 01W0014B) OPINION

APPEAL from an order of the Superior Court of Kings County granting petition for writ of habeas corpus. Charles R. Johnson, Judge.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Frances T. Grunder, Assistant Attorney General, Julie L. Garland, Stephen P. Aquisto and Pamela B. Hooley, Deputy Attorneys General, for Appellant.

William L. Schmidt, under appointment by the Court of Appeal, for Respondent.

-ooOoo-

The People appeal from an order granting Thomas Porter’s petition for writ of habeas corpus. The trial court concluded that Porter’s plea bargain, pursuant to which Porter was convicted of second degree murder, required his release on parole despite a finding by the Governor that such release would pose an undue danger to the public. We conclude the order must be reversed.

Facts and Procedural History

Our record in this habeas corpus proceeding does not contain the complete file of the criminal case that resulted in Porter’s incarceration. It appears, however, Porter originally was charged with three counts of first degree murder--one count with special circumstances allegations--and several additional felony counts. (The three murders occurred at different times and apparently were unrelated to each other.) In return for dismissal of all other charges and reduction of the remaining count to second degree murder, on August 2, 1989, Porter pled guilty to the murder of Harry Banister.

As part of the plea bargain, Porter agreed that, if he were sentenced to prison, he would provide information to the prosecutor concerning other crimes; in return, the prosecutor “personally [would] write a letter indicating to the Department of Corrections his cooperation with my office” (as phrased by the prosecutor) or would “send a letter in effect recommending an early parole if he does cooperate” (as phrased by defense counsel at the time of the plea). (The minute order of the change of plea hearing states that the plea bargain called for the prosecutor “personally [to] write a letter to the Parole Board urging early release.” Porter acknowledged understanding that he could be sentenced to a term of 15 years to life in prison. The court accepted the plea bargain.

Porter’s plea was stated by his attorney and by the prosecutor to be pursuant to People v. West (1970) 3 Cal.3d 595, 613, which permits bargained-for pleas to lesser offenses than charged in the information. Viewed in context, however, the plea was tendered pursuant to North Carolina v. Alford (1970) 400 U.S. 25, 37-38, since Porter pled guilty as charged to an amended information but at all times denied he was guilty of killing Banister.^[1]

In due course, Porter was sentenced to 15 years to life in prison. Porter was denied parole at his first two hearings. At the second of those hearings, an assistant district attorney advised the hearing panel of the plea bargain and stated that his office would “abide by the terms of this agreement and not oppose parole in this case.”

At the next hearing, in 2001, the same assistant district attorney appeared. This time, he gave a more detailed version of the district attorney’s view of the situation. Relevant excerpts of his statement are: “[A]t that time the District Attorney, Mr. Coffee, made an agreement with Mr. Porter that our office would recommend, we would actually urge early parole for his plea in this case and for cooperation in other cases.… But I think [defense counsel] pled his client in hope that he would get the same deal that Ludlow got and get probation, which [is] what I think Ludlow got. And Mount, who did go to trial on the three murders, actually was acquitted or hung on the DePriest and the DiSteffany murders and was only convicted of the Ban[]ister murder .… So I think, in that case, even the jury had a hard time believing Scroggins, who was probably one of the most culpable in this case, who walked away scot-free from everything. So with those comments, and then my office, again, our bargain is to urge early parole.”

The hearing panel of the Board of Prison Terms (BPT) granted parole for a date about four years from the time of the parole hearing. Exercising his review authority pursuant to California Constitution article V, section 8, subdivision (b), the Governor reversed the grant of parole. (See also Pen. Code, § 3041.2 [implementing constitutional provision].) At Porter’s next parole hearing, in 2002, the hearing panel again recommended parole for a date about four years from the date of the hearing. Once more, in a decision dated March 21, 2003, the Governor reversed the decision. Responding to the district attorney’s statement favoring early parole, the Governor noted that “the sentencing judge found that Mr. Porter was at the canal during the crime.” He stated that the district attorney’s position was taken “pursuant to a plea agreement, not an assessment of Mr. Porter’s present suitability.” The Governor concluded: “Mr. Porter continues to avoid the truth, which demonstrates a failure to fully accept responsibility. I believe he is unsuitable for release at this time.”^[2]

On August 11, 2003, Porter filed the present petition for writ of habeas corpus. In it, he alleged the Governor had a policy of denying parole, that he was not given individual consideration in the reversal of the BPT grant of parole, and that the implementation of the Governor’s policy subsequent to the time of Porter’s plea bargain violated the plea bargain.

After various proceedings in the trial court, the court granted Porter’s petition on August 13, 2004. In relevant part, the court’s order stated: “Penal Code section 3041.2 cannot be used by the Governor of the state to arbitrarily deprive a party of the clear intended result and benefit of a negotiated plea made in 1989 by a separate member of the executive branch of the government. … [¶] Except for events occurring after the plea bargain, which would affect Petitioner’s parole suitability, the Governor must honor the spirit of that agreement. The Governor did not address those issues. … [¶] … [¶] The integrity of local law enforcement and the reliability of our concept of justice is of greater import than arbitrarily and fastidiously adhering to a decision solely because it was made by the governmental official having the highest political office.”

The court then “vacated” the decision of the Governor as “an abuse of his authority. The Governor is bound to honor the plea agreement of the local District Attorney. The decision of the Board of Prison Terms is reinstated so that the new Governor may reconsider Petitioner’s suitability for parole by giving due consideration to the plea bargain and the circumstances occurring subsequent to sentencing.”

The Governor filed a timely notice of appeal. This court granted the Governor’s request that the effect of the trial court’s order be stayed pending outcome of the appeal.

Discussion

The trial court’s decision in this case was made almost a year before the decision of the Supreme Court in In re Roberts (2005) 36 Cal.4th 575. In that case, the court held that the proper venue for a challenge to denial of parole is the superior court in which the prisoner originally was convicted and sentenced. (Id. at p. 593.) After Roberts, the proper venue for the present case would have been Kern County, and the Kings County Superior Court would have been required to transfer the case to the Kern County Superior Court. (Ibid.) The issue is one of venue, and not jurisdiction, however, and neither party has raised an issue of the effect of Roberts on pending appeals. Because we will reverse the decision of the trial court on the merits, it is not necessary to consider the Roberts issue. (See id. at p. 594.)

The trial court found that the Governor had failed to address “the spirit” of the plea agreement. In fact, the Governor’s statement reversing the grant of parole does address that issue: “I note that the Kern County District Attorney’s office does not oppose parole. However, this is pursuant to a plea agreement, not an assessment of Mr. Porter’s present suitability. I believe that each of the negative factors discussed above, in addition to other evidence in the file, demonstrates that Mr. Porter continues to pose an unreasonable danger to society at this time.” Those negative factors included, primarily, that Porter was Banister’s executioner, that the crime was both heinous and senseless, and that Porter had continued to “avoid the truth” by maintaining that he only became involved in the crime on the day after the murder. In other words, looking at the same record available to the BPT hearing panel (including the district attorney’s evaluation of the facts of Porter’s involvement), the Governor simply came to the different conclusion that Porter was a direct participant in the crime.

Clearly, the Governor considered the existence of the plea bargain; but, equally clearly, if one credits Scroggins’s account of the crime as the Governor was entitled to, there is “some evidence” that supports the Governor’s factual conclusion that Porter was not yet suitable for parole despite the district attorney’s urging of early parole. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 667, 683.)

In addition, the trial court misconstrued the plea bargain. The bargain was that the district attorney would urge early parole for Porter if Porter cooperated in the investigation of certain other crimes. There was no attempt by the district attorney to bind BPT to any maximum sentence. The district attorney fully discharged his part of the plea bargain with the assistant district attorney’s presentation at the 2001 parole hearing, quoted above.

There was no guarantee in the plea bargain that the district attorney’s presentation would be persuasive. That it was persuasive to the BPT hearing panel but was not persuasive to the Governor does not violate or undermine the plea bargain in any way.

Porter contends the plea bargain was that “if the Board [of Prison Terms] granted him parole he would be released.” There is no basis in the record for this contention. The parole review process that was in place at the time of the plea is the same as the process in place now. (See In re Rosenkrantz, supra, 29 Cal.4th at p. 625 [Governor’s parole review power adopted in 1988].) There was no statement or implication that the full and constitutionally prescribed review process was intended to be circumvented by the plea bargain; to the contrary, the implication was that Porter might well serve life in prison:

“[The Court] As we stated earlier, the sentence for first degree, excuse me, second degree murder is a 15 year to life in the state penitentiary. You understand that?

“[Defendant] I do.

“[The Court] Nobody has made any promises to you about sentencing except [the assistant district attorney’s] letter.

“[Defendant] That is all.

“[The Court] So, as you stand here now you are facing 15 years to life.

“[Defendant] That is correct.”

In addition, Porter contends the Governor “unilaterally re-characterized Porter’s commitment offense as a first degree murder.” While the Governor did describe the murder as premeditated and stated that “one of Mr. Porter’s crime partners was convicted of first degree murder,” these statements were made in the context of rejecting BPT’s selection of the “normal” base term for second degree murder. The base term system for second degree murder specifically permits consideration of the factors identified by the Governor as a basis for extending the base term--that is, for requiring a longer prison term prior to parole. (See Cal. Code Regs., tit. 15, § 2404; see also In re Rosenkrantz, supra, 29 Cal.4th at p. 683.)

Porter attempts to draw an analogy between the Governor’s actions here and the practice condemned in People v. Harvey (1979) 25 Cal.3d 754, 758. In that case, the Supreme Court prohibited the use of counts dismissed as part of a plea bargain to impose a harsher sentence for a count the defendant admitted as part of the bargain. Importantly, however, the Harvey court expressly stated that the prohibition did not apply to facts “transactionally related” to the admitted crime, which facts could be considered in sentencing. (Ibid.) Here, the dismissed first degree murder count was transactionally related--indeed, it was the same crime that Porter admitted in the plea bargain. In addition, “appellant was not suffering adverse sentencing consequences by reason of the facts of a dismissed count. Rather, the [Governor] was determining whether parole was appropriate in view of a number of factors, including the facts of the crime committed.” (People v. McElwee (2005) 128 Cal.App.4th 1348, 1353.)

Finally, Porter contends the Governor based his reversal of the parole decision on the truth of statements that had never been “determined by a jury.” He cites Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531]. This argument is frivolous. Blakely involved sentencing decisions by a court, not parole decisions by executive officers. In any event, Blakely is inapplicable to selection of the specific term of imprisonment in an indeterminate sentence system. (People v. Black (2005) 35 Cal.4th 1238, 1251.)

In summary, there is no factual or legal basis upon which to require the Governor to reconsider the previous decision to reverse the grant of parole on the record as it existed on March 21, 2003.

Disposition

The order granting the petition for writ of habeas corpus is reversed.

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VARTABEDIAN, Acting P. J.

WE CONCUR:

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WISEMAN, J.

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GOMES, J.

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^[1] While this discrepancy is not, in itself, significant, it is worth noting that the parties did not stipulate to any particular factual basis for the plea. In the version of events provided by coparticipant Robert Scroggins, who was given immunity, Porter was the person who slashed Banister’s throat and pushed him into a canal, where he drowned. Porter’s version was that Scroggins and two other men (Mount and Ludlow) came to Porter’s house the day after the murder and asked him to open a safe for them. He did so, but knew nothing about the murder until he read about it in the newspaper.

^[2] The members of the parole hearing panel seemed to anticipate that the divergence of the Scroggins and Porter accounts of the facts would continue to be a problem for Porter, despite the assistant district attorney’s conclusion that Scroggins’s account of the crime had been discredited. At the conclusion of the second hearing, the presiding commissioner stated: “[I]f for some reason the [parole] date doesn’t stand, [and] you come back before the Board in a short period of time … what we’re going to do is something that’s a little bit unorthodox. We’re going to ask for an investigation by our investigative department within the BPT to go talk to Mr. Mount, who is serving life without the possibility of parole” and to Ludlow. “You know, maybe Mr. Mount is ready to make his peace with God and willing to tell what actually happened. … I think it’s going to be really important to talk to Mr. Mount and see what he has to say as to what happened.” Our record does not reflect whether such an investigation has occurred or what resulted from it, if it occurred.