Modification: In re Foster

In re JEREMY J. FOSTER,

on Habeas Corpus.

No. A160713

(Humboldt County

Super. Ct. No. CR2001183)

California Court of Appeal

First Appellate District

Division Two

Filed December 1, 2022

ORDER MODIFYING OPINION;

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

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

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.

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.

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 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 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."

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.

Richman, Acting P.J.