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Court of Appeal:
Right to Witnesses Exists at Parole-Rescission Hearing
Opinion Orders New Hearing for Sex-Offender Whose Release Was Opposed by Newsom
By a MetNews Staff Writer
The Board of Parole Hearings, after finding an inmate suitable for parole, erred in rescinding its order in response to concerns expressed by Gov. Gavin Newsom, Div. Two of the First District Court of Appeal held yesterday, because it refused to permit the subpoenaing of witnesses.
In response to inmate Jeremy J. Foster’s petition for a writ of habeas corpus, the panel ordered that a new rescission hearing be conducted.
“[T]he Board violated its own rules and the tenets of due process in denying Foster’s request to call witnesses at his rescission hearing,” Justice Douglas P. Miller wrote.
Foster on June 5, 1998, pled guilty, pursuant to a plea bargain, to two counts of forcible sexual penetration with a foreign object (based on attacks on two 14-year-old girls), with use of a knife. He was sentenced to 23 years in prison to life.
After the board on Feb. 12, 2019 found him suitable for parole, Newsom, acting pursuant to Penal Code §3041.1, on May 15, 2019, sought en banc reconsideration by the board. That section 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.”
Governor’s Concerns
Newsom based his concern on factors identified in a comprehensive risk assessment prepared by Steven Arkowitz, a forensic psychologist. The governor wrote:
“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.’ ”
He quoted Arkowitz as observing:
“While he has made some progress in recent years, he has not yet sustained his gains towards greater maturity and personal responsibility.”
Foster sought to subpoena four witnesses to be questioned at the rescission hearing: Newsom, Arkowitz, a prison psychologist and a treating psychiatrist. The board advised him:
“Evidentiary witnesses are not relevant for conducting the rescission hearing and making the necessary determination.”
On Oct. 8, 2019, the board determined that inadequate consideration had been given the concerns to which Newsom had drawn attention and decided Foster was not for to be released.
Humboldt Superior Court Judge Gregory J. Elvine-Kreis denied Foster’s petition for a writ of habeas corpus. He reasoned that the matter was moot because Foster, in the interim, had a parole-suitability hearing and was turned down. In August 2020, he sought a writ of habeas corpus in the Court of Appeal. Before the matter was heard, the board found him unfit for parole at a further suitability hearing.
Miller’s Opinion
Justice Douglas P. Miller wrote for the appeals panel in declaring that Foster did have the right he asserted—at least as to enlisting the testimony of the mental health professionals. He said in a footnote that “Foster does not press his claim for the Governor’s testimony, with apparent good reason,” citing a section of the Code of Regulations declaring that public officials are ordinarily “irrelevant” witnesses at rescission hearings.
Miller pointed to a regulation spelling out:
“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….The prisoner may request subpoenas....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.”
He noted other regulations fortifying the conclusion that a right to witnesses exists at rescission hearing.
Not Rendered Moot
The matter is not rendered moot, Miller said, by the fact that Foster has, in the interim, had two parole-eligibility hearings. There’s no right to witnesses at those hearings, he explained.
Foster did not forfeit the right to witnesses, the opinion’s author wrote, because he had invoked the right prior to the hearing and was told he could not call witnesses.
“[W]e 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,” Miller said.
The case is In re Foster, A160713.
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