Monday, November 20, 2017

Ca. Santa Clara Sup. Court got it right: "Preponderance Of the Evidence" is the correct BPH standard

In the United States legal system, there are several Standards of Proof that must be met before the judge (or decision maker) decides who wins a case. Below are definitions of the standards, in order to better understand a recent (11/14/17) Superior Court Judge Order from Santa Clara. The Judge Granted an inmate's Habeas Corpus Petition, based on the Board of Parole Hearings, using the wrong Standard of Proof during the hearing.

The Preponderance of the Evidence is a standard of evidence, or standard of proof, normally used in civil trials vs. criminal trials.Although not the law, we sometime state the standard of proof, in a numerical value. Here the requirement would be that more then 50% of the evidence points to something. For example: At the end of civil case A v. B, 51% of the evidence favors A. Thus, A has a Preponderance of the Evidence, A has met their burden of proof, and A will win the case. The English expression "More likely than not" is also sometimes used for describing this burden of proof.

If we extrapolate this method to the Parole Suitability Hearings, then it means if Parole is Denied - the unsuitability factors must be found by a Preponderance of the Evidence. In other words, the Board is required to weigh all the relevant evidence and if 51% of the evidence favors unsuitability then the Board can deny a parole grant. They should NOT use the highly differential standard of "some evidence"  used by the Court. If we ventured a numerical value the "some evidence", it may require maybe only 5-10% of the evidence favors unsuitability. (Note : Editor's opinion on this "some evidence" numerical value)

The next most stringent category is “Clear and Convincing Evidence,” which is used in some criminal trials, civil cases, and now in the Board of Parole Hearings (BPH) when applying Marsy's Law length of Denial (3 to 15 years). A medium level of burden of proof which is a more rigorous standard to meet than the preponderance of the evidence standard, but a less rigorous standard to meet than proving evidence beyond a reasonable doubt. 

Finally,  the criminal courts use the highest standard of guilty “Beyond a Reasonable Doubt”. Those legal authorities who venture to assign a numerical value to “beyond a reasonable doubt” place it in the certainty range of 95%.

Given all these Proof of Standard definition (above), Hon. Eric S. Geffon of the Santa Clara California Superior Court  ORDERED (11/14/17) the Petitioner (Inmate ORLANDO CRUZ VASQUEZ) ) be afforded a new Parole Hearing using the proper Burden of Proof standard of  Preponderance of the Evidence.  Attorney NOTE: this case is not citeable since it is only at the Superior court level and obviously not a Published case. To get a copy of the In re Vasquez Order, please email our law office at (my legal assistant)  use the SUBJECT line: VASQUEZ ORDER request.

Make sure when you hire a Parole Hearing attorney that they use the Proper Law [when fighting for your Loved one] and also knows which Standards of Proof to apply at the Parole Hearing- it can make the difference between a Grant and a Denial!  


Friday, October 13, 2017

Gov. signs AB 1308 to expand Youth Offender to 25 y.o.

SACRAMENTO – On October 11,2017 Governor Edmund G. Brown Jr. signed legislation to improve California’s criminal and juvenile justice systems, restore the power of judges to impose criminal sentences and reduce recidivism through increased rehabilitation.

The Governor signed the bills enumerated below (among others) but of immediate importance to the current Youth Offender (ISL/DSL) Lifer or Determinate inmate population are:

 • AB 1308 (Stone) expands the Youth Offender parole process for persons sentenced to lengthy prison terms for crimes committed before age 23 to include those 25 or younger. BOTTOM LINE:
Both Inderterminate (ISL) and Determinate (DSL) inmates that committed their crime at the age of 25 years old (the day of the crime Not the sentencing day) or under will be eligible for a Youth Offender Hearing on or before January 1, 2020 and January 1, 2022, respectively. Furthermore those youth offender inmates will receive a CONSULTATION by meeting with a Commissioner on or before January 1, 2019.

NOTE: CONSULTATION HEARINGs are not hearings and no attorneys are allowed at the Consultation.  It is only a Consultation with a Commissioner to give a brief orientation to the inmate (Youth offender) on what s/he needs to work on before his/her actual Youth Offender Parole Suitability Hearing.

• AB 1448 (Weber) allows the Board of Parole hearings to consider the possibility of granting parole to an elderly prisoner who has served at least 25 years in prison. This bill will codify the 3-Judge Panel guidelines to give special considerations to the Elderly inmates. BOTTOM LINE: if the inmate is 60 years old and has been incarcerated at least 25 years, he will qualify for an Elderly Parole Hearing. The Board of Parole Hearings (BPH) will normally look at health factors, cognitive functioning, as well as mobility issues during the Elderly Parole Suitability Hearing. This is NOT to be confused with the Expanded Medical Parole (EMP) hearings nor the Compassionate Release. If you need more information on the difference on this terminology consult an attorney, familiar with this area of the law.

• SB 394 (Lara) ensures compliance with U.S. Supreme Court decisions by allowing children sentenced to life without the possibility of parole (LWOP inmates) to be eligible for a parole hearing after 25 years of incarceration. BOTTOM LINE: they will not need to file a Petition in Court to lift the LWOP top; unlike the old SB9 and Miller V. Alabama Petition that needed to be filed in Court to be re-sentenced the inmate as a Lifer with Possibility of Parole.

It is expected that these Laws will become effective as of January 1, 2018. It will surely increase the work load of all the 15  Governor appointed Commissioners working at the Board of Parole Hearings (BPH) - be patient the NOTICES will surely be provided to the inmates in the near future if they qualify as a youth offender - BE PATIENT but BE PREPARED. If you feel BPH made an error in finding your loved one NOT eligible you may want to hire an attorney that is familiar with these new laws and the Parole Hearing area.

Wednesday, September 27, 2017

In re Palmer (7/26/2017): BPH to give "deferrence" to Youth Factors

Case Name: In re Palmer , District: 1 DCA , Division: 2 , Case #: A147177
Opinion Date: 7/26/2017 , DAR #: 7132

Case Holding:
Board of Parole Hearings' refusal to calculate base and adjusted base term at inmate's parole hearing entitles youthful offender to new hearing. In 1988, when he was 17 years old, Palmer pleaded guilty to kidnapping for robbery. He was sentenced to life with the possibility of parole and has since been denied parole 10 times.

At his most recent parole hearing in June 2015, the Board issued a five-year denial of parole and refused Palmer's request to calculate his base term and adjusted base term, stating it did not set terms for youthful offenders. Palmer filed a petition for writ of habeas corpus, arguing the settlement terms of In re Butler (2015) 236 Cal.App.4th 122 required calculation of his base and adjusted base terms. After the court issued an order to show cause, the Board calculated Palmer's base term and adjusted based term. Held: Petition granted.

The Butler settlement requires the Board to set the base terms and adjusted base terms for life inmates at their initial parole consideration hearing, or in their next scheduled parole consideration hearing that results in a grant of parole, denial of parole, a tie vote, or a stipulated denial of parole. Unlike the parole suitability determination, which focuses on current dangerousness, the setting of the base term is designed to insure that life prisoners do not serve terms disproportionate to their individual culpability. The adjusted base term indicates the point at which a denial of parole will result in constitutionally excessive punishment, and the Board must consider the relationship between the adjusted base term and time served before denying parole.

Here, the Board did not calculate Palmer's base and adjusted base term until after it issued a five-year denial of parole so the issue of excessive punishment was not factored into the term of the Board's denial. Palmer's June 2015 parole hearing did not comport with Butler and the Court of Appeal ordered the Board to conduct a new hearing in light of the terms it now has set for Palmer.

[CCAP Editor's Note: Justice Kline filed a concurring and dissenting opinion, agreeing that Palmer is entitled to a new hearing but questioning whether it is proper for the Board to apply the same base term criteria to youth offenders as it does to adult offenders, an issue the court expressly declined to address. In Justice Kline's opinion, the base term for youth offenders should be adjusted to reflect the "diminished culpability" of juveniles as compared to adults.]

NOTE: It is very worth while to read  Justice Kline's well articulated opinion on the "dimished culpability" of the youth offenders - which is not reflected ANYWHERE in Title 15 CA code of Regs. (aka the matrix) that is used in setting the Base Terms during a Youth Offender's Parole Hearing.

A BIG THANK YOU to CCAP's weekly summary of case Editor(s)!

The full opinion is available on the court's website here: