Prisoner at parole rescission hearing has a right to call witnesses

In re Foster (Cal. Ct. App., Nov. 1, 2022, No. A160713) 2022 WL 16570551, at *1

Summary: Foster, a state prison inmate, was sentenced in 1998 to an indeterminate term of 23 years to life. 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  ordered a rescission hearing to determine whether the grant of parole was improvident, based on the concerns raised by the Governor.

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. The  Board denied Foster’s request for witnesses, the panel rescinded the grant of parole. Foster petitioned for a writ of habeas corpus, arguing that the Board improperly denied his request to subpoena witnesses for the rescission hearing

The Board’s rationale for denying Foster’s request 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. The  Board’s rationale had  been previously rejected in In re Johnson (1995) 35 Cal.App.4th 160, 170-172 (Johnson). The Court of Appeal held 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. The Court vacated the Board’s decision to rescind its grant of parole, and remand to the Board to conduct a new rescission hearing.

February 2019 Parole Hearing and Subsequent Proceedings

On February 12, 2019, at a parole suitability hearing, the Board found that Foster was suitable for parole.

Governor Gavin Newsom requested reconsideration of the decision to grant Foster parole, pursuant to section 3041.1.2 The Governor 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.” The Governor wrote that his concerns were supported by the Comprehensive Risk Assessment that had been prepared by a forensic psychologist.

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.”Enumerated paragraph 5 of the notice bears the bold-faced heading “Witnesses,” and states: “You may not call witnesses at a parole consideration hearing. 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.”

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.”

The Board responded to Foster’s letter denying the request for witnesses. on 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 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, “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.

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.

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.

Applicable Law


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.’ [In re Stoneroad (2013) 215 Cal.App.4th 596,615.)

The Board’s broad discretion in parole matters is subject to the prisoner’s right to procedural due process. (Johnson, supra, 35 Cal.App.4th at p. 170.) In Johnson, the Court discussed the specific procedures at 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. 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 § 3041.57 ….)” (Johnson, supra, 35 Cal.App.4th at p. 170.)

The  regulation that was cited to Foster in his Notice of Hearing Rights under the heading “Witnesses,” stated, “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 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, 41 Cal.Rptr.2d 449.)

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 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.Although the facts of Johnson are not identical to the facts before us, the facts here require the same outcome.

The Board violated its own rules and the tenets of due process in denying Foster’s request to call witnesses at his rescission hearing. Foster should have been permitted to call witnesses whose testimony would have been relevant to understanding or interpreting the record before the February 2019 hearing.

The error was nit harmless beyond a reasonable doubt. The question  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)

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, 41 Cal.Rptr.2d 449.) 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.

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