Monday, June 19, 2017

SB 394: Ending Juvenile Life without Parole and AB 1308 expansion to 25 y.o. YOPH (Youth Offender Parole Hearing)

The Law Office of Diane T.  Letarte has been getting many letters and phone calls regarding the expansion of current Juvenile Laws (SB9, SB260, SB261), to hopefully include the new SB394 and AB1308. (see our prior BLOGs on the existing Youth offender laws)

First, everyone must be aware that SB9 applies to only LWOP juveniles, meaning they were under the age of 18 years old when they committed the crime and have no Possibility of Parole. Second, the SB260 and SB261 (under the age of 23 on the day of the crime) ONLY applies to Lifers (with Possibility of Parole) and Determinate Sentence (DSL) Juvenile inmates, not to LWOPs (Life without Possibility of Parole). If we remember the SB9 law, it allowed the JLWOP to petition the Court to be re-sentenced to take into consideration the "Hallmark features of Youth" (more or less) at the time of the crime to mitigate their sentence, thus having the possibility to eliminate the LWOP sentence  to a Life sentence with the Possibility of Parole. LESS GUILTY BY REASON OF ADOLESCENCE - sorta speak!

Having the above juvenile law stated, then we can report that the new SB394 and AB1308 are moving along successfully BUT---- they are NOT law at the writing of this article. In short, SB 394 would automatically send LWOP inmates who were under 18 at the time of their crime to a Parole Hearing after 25 years of incarceration. AB 1308 would extend YOPH (Youth Parole Hearing non-LWOP) considerations to those who were “25 years of age or younger”,  at the time of the crime.

SB 394: Would allow those sentenced to LWOP for crimes committed before the age of 18 to be automatically seen by the Board of Parole Hearings (BPH) after 25 years of incarceration. This bill passed the Senate floor, and is now in the Assembly committee process awaiting assignment to committee, expected to be Assembly Public Safety. No date yet set for a vote; We support this bill.


AB 1308: Extends the provision of Youth Offender Parole Suitability Hearings to those who were “25 years of age or younger” at the time of the crime. This bill, which extends (SB260/261) YOPH consideration is now in the Senate committee process, expected to be referred to Senate Public Safety. It cleared the Assembly floor, largely along party line votes. We support this bill. 

Furthermore on SB394, it would remedy the now unconstitutional juvenile sentences of life without the possibility of parole (JLWOP). This bill would:

---Allow the approximate 290 juveniles with LWOP cases to be eligible for an initial parole hearing after 25 years of incarceration. There would be no guarantee of parole, only an opportunity for the person to work hard and try to earn the chance for parole via the Board for a Youth Offender Parole Suitability Hearing (BPH).

---Streamline the process and bring California into compliance with the U.S. Supreme Court’s most recent ruling by making juveniles sentenced to life without parole  (JLWOP) eligible under the state’s existing youth offender parole (SB 260 governed by Penal Code 3051) process.

---Eliminate the need to Petition the Court for a resentencing hearing (if you were under 18 y.o at the time of the crime), which is the current process under the SB9 law.

For a complete legislative FACT sheet (SB394) see Senator Ricardo Lara

Monday, April 17, 2017

In re Trejo: Youth Offenders, NOT Required to Serve Thompson Terms After Granted Parole


Filed 4/13/17

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION TWO

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In re GILBERT TREJO 
 A149064  (Marin CountySuper. Ct. No. SC197534A)



This case stand for the fact that Youth Offenders, are NOT Required to Serve Thompson Terms After Granted Parole, if the new crime was committed "in prison" and under the age of 23 years old. Furthermore, if there were detained longer than needed, the excess time can be credited against the Parole time.


ISSUE:
Whether a “youth offender” sentenced to a term of 15 years to life for an offense committed when he was 17 years old and found suitable for release on parole pursuant to the youth offender parole provisions of Penal Code section 3051 must, before being released, serve a consecutive sentence imposed for a crime committed in prison at age 20

OUTCOME:
We conclude that the decision of the Board of Parole Hearings requiring petitioner to serve the consecutive term after being granted parole, and its implementation by the Department of Corrections and Rehabilitation, were erroneous. 

SUMMARY: 
Petitioner was convicted of second-degree murder and sentenced to 15 years to life in prison. The offense was committed in 1979, when petitioner was 17 years old. In 1982, at age 20, he pled guilty to assault with a deadly weapon on a peace officer and possession of a deadly weapon by a prisoner and was sentenced to four years, to be served consecutively to his life sentence. In 2015, after serving 35 years in prison, petitioner was found suitable for parole as a youthful offender under Penal Code 3051, effective in November 2015. Petitioner claimed that his release date was recalculated as November 2, 2017, based on a correction in his credit earning status. In June 2016, petitioner filed a habeas corpus petition challenging the legality of his continuing incarceration.

The trial court denied relief, concluding that section 3051 does not exempt a youthful offender granted parole from serving a consecutive sentence for an offense committed in prison, citing section 1170.1(c), which provides that a consecutive sentence for an in-prison offense “shall commence from the time the person would otherwise have been released.” The court of appeal granted relief; section 1170.1(c), does not apply to petitioner’s case because his in-prison offense was committed before he was 23 years old, so he was entitled to release at the end of his indeterminate sentence pursuant to section 3051(d).



DISPOSITION
Respondent is ordered to amend petitioner’s release date to November 2, 2015, and to deduct from his parole period the days of incarceration served beyond that date. Our order filed on April 10, 2017, granting petitioner’s motion for release, ordered respondent Warden of Ironwood State Prison to release petitioner on parole, in accordance with the terms of his parole grant and demands of due process pending resolution of his petition in this court. 


We now order that relief as the final decision of this court on the petition for writ of habeas corpus. Good cause appearing, this decision shall be final as to this court immediately. (Cal. Rules of Court, Rule 8.387, subd. (b)(3)(A).)


The full Court of Appeal decision can be downloaded HERE.


Congratulations to Attorney Tracy Lum for this Published Opinion.

Wednesday, March 8, 2017

In re Reynolds 2/24/17: Stale Psych records: Gov. Arbitrarily ignored Pertinent evidence.


  In re Reynolds, 2017 Cal. App. Unpub. LEXIS 1374 
  California 1st District Court of Appeal, Div 2
  A146227 (Cal. Ct. App. Feb. 24, 2017) 

Jude Kline strikes again to give the LIFERS another good CA State case.
Although this is UNPUBLISHED, there are some good wording, for arguments in future Writs against a Governor reversal. NOTE:Staled evidence used by an old 2011 Psychological evaluation indicated that the Gov. arbitrarily ignored probative current evidence.

SUMMARY:
Dwayne Reynolds, a 56-year-old prisoner, was sentenced to serve 26 years to life in prison after a jury convicted him of murdering his employer, Timothy Fitting, in 1990. He has been incarcerated in San Quentin Prison since then and eligible for parole since August 21, 2007. Reynolds was granted parole by the Board of Parole Hearings on June 12, 2014. The Governor reversed the Board's grant of parole on October 31, 2014. We shall find that the Governor's reversal of the grant of parole is unsupported by some evidence and therefore arbitrary and unreasonable. As Reynolds was deprived of his constitutional right to due process he is entitled to immediate release from prison.

DISCUSSION:
The Governor relied on two factors to reverse the Panel's Grant of Suitability.
The first was that Reynolds's crime was "extraordinarily heinous. Reynolds waited for Fitting to arrive at work, distracted him, and then viciously attacked him with a wrench, bludgeoning him nearly 30 times" Moreover, "[t]his was not the first time that Reynolds had reacted violently in a drug-related situation. In 1983, he was convicted of assault with a deadly weapon after he stabbed someone numerous times during an altercation related to crack cocaine." 

The second factor, which the Governor dwelt upon at greater length, was the concern that "Reynolds has not sufficiently explored the connection between his drug use and his violence." "Reynolds admits that he had a debilitating drug problem, particularly related to his use of crack cocaine for eight years before the murder. He told the Board that he decided to kill Fitting because when he stole the computer 'that was a game changer . . . . There was so much shame, so much hurt that I would stoop that low to steal from someone that cared for me . . . . He said that he struck [the victim] so many times 'to make sure that [he] was dead,' and because 'I was so much full of anger, enraged, directed at myself. I had spent so many years of chasing drugs where I had become so ashamed, and I felt so bad that I could steal from someone that was so good to me, and in my thinking was that I couldn't face Timothy.' "

The Governor relied upon the paragraph in the comprehensive risk assessment (CRA) of Reynolds undertaken by Dr. Venard in connection with Reynolds's 2011 parole hearing, which, as previously noted, had been emphasized by the district attorney at the hearing. GOvernor goes on to state.." until Reynolds can better explain his decision to murder Fitting and the extreme violence he used when doing so, I do not believe that he is prepared to be released."

The court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence. At the same time . . . the Board's decision must ' "reflect[ ] due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards." '(citations omitted)

The Governor's written decision does not refer to any of the regulative factors indicative of suitability for release on parole or unsuitability for release (other than the gravity of the commitment offense), but his silence seemingly indicates an acknowledgment that all of the applicable factors indicating suitability apply to Reynolds and none of those indicative of unsuitability—save the gravity of his commitment offense—are applicable to him.

Apparently conceding that Reynolds demonstrates all of the qualities Board regulations deem indicative an inmate is suitable for release, the Governor focuses on a paragraph in Dr. Venard's 2011 risk assessment as a basis for concluding that, "[g]iven the severity of this murder," Reynolds remains a security risk and is unsuitable for release, "until [he] can better explain his decision to murder Fitting and the extreme violence he used when doing so.

The Governor states that he "considered the evidence in the record that is relevant to whether Reynolds is currently dangerous," but it is evident that he gave unusual weight to the gravity of Reynolds's offense, which he justifiably described as "extraordinarily heinous." It must be remembered, however, that as our Supreme Court has said, "there are few, if any, murders that could not be characterized as either particularly aggravated, or as involving some act beyond the minimum required for conviction of the offense."

The Court goes on to state:   
 "We are concerned with the Governor's preoccupation with the "egregiousness" of Reynolds's homicide—which is immutable and cannot alone support the denial of parole (Lawrence, supra, 44 Cal.4th at pp. 1226-1227)—and the little weight he placed upon the statutory and regulatory factors concerning parole suitability (Pen. Code, § 3041, et seq., Regs., § 2230 et seq.), which the Supreme Court has repeatedly said must all be duly considered. (citation omitted)

The Court felt compelled to reverse the Governor's decision because his crucial determinations—that Reynolds has not developed an adequate understanding of the triggers associated with some of his incidents of drug use, and he must "better explain his decision to murder Fitting"—is based on stale evidence. The Governor has arbitrarily ignored pertinent evidence that is more recent and more probative than that he relied upon.



DISPOSITION:
The petition for writ of habeas corpus is granted. The Governor is hereby ordered to vacate his decision of October 31, 2014, which reversed the Board's June 12, 2014 grant of parole. The Board's June 2014 grant of parole is reinstated, the denial of parole on November 6, 2016 is vacated (In re Copley, supra, 196 Cal.App.4th at p. 437), and the Board is directed to conduct its usual proceedings for a release on parole. (See In re Lira (2014) 58 Cal.4th 573, 582.) In the interests of justice, this opinion is made final as to this court seven days from the date of filing.

Wednesday, February 8, 2017

In re Perez (12/29/16) : Use of inmate's innocence claim Unlawful to Deny Parole

2016 Cal. App. LEXIS 1149
Court of Appeal of California, First Appellate District, Division Two 


BOTTOM LINE: : The Board's questioning of the inmate about the life crime and use of his
claim of innocence to find current dangerousness was unlawful - PERIOD!

SUMMARY: Perez  was convicted of kidnapping for purposes of carjacking. During the Parole Suitability Hearing the evidence showed Perez expressed insight into his behavior at the time of the life crime. He also showed remorse to the extent possible, given his continuing claim of innocence; Despite the explicit constitutional and statutory mandate to do so, the board repeatedly failed to consider the inmate's youth (SB260) at the time of the crime, which, while serious, did not lead to any injuries and occurred some 19 years ago when he was 16 years old; The inmate did not have an extensive history of prison rules violations; He had been an exemplary prisoner for many years.
 
The court is required to affirm a denial of parole unless the Board decision does not reflect due consideration of all relevant statutory and regulatory factors or is not supported by a modicum of evidence in the record rationally indicative of current dangerousness, not mere guesswork.

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Analysis below by: Attorney Dennis Riordan
a Sustaining member of California Attorneys for Criminal Justice (CACJ) and has been a member since 1981.   (THANK YOU -   (Education use and for Defense Attorney)
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The Court vacated the Board of Parole Hearings' decision denying parole to Perez,
sixteen years old at the time he suffered convictions for robbery and carjacking, resulting in a life sentence. Rather than blindly deferring to the Board’s exercise of discretion, Division Two took the time and effort to drill down on the reasoning of the Board and to carefully review the hearing
evidence, finding that the reasoning simply was not supported by the evidence. In doing so, the opinion provides a wealth of useful language and reasoning for those representing young offenders in not only parole matters but other procedural contexts as well.


First, the Court deprecated the Board’s reflexive reliance on “lack of insight’ as a basis for denying parole, noting that rationale had effectively replaced the “heinous nature” of the offense as a reason for denial, so as to now constitute the “new talisman” for such denials. The Court then engaged in a detailed exposition of the petitioner’s statements at the hearing as to his understanding of why he had engaged in a pattern of criminality as a teenager, labeling as “baffling” the Board’s “repeated insistence” that Perez “had not explained how he had gravitated to negative influences...” In a stinging rebuke, the Court cited case law to the effect that the Board’s “mere refusal” to accept evidence showing understanding and remorse did not constitute a rational and sufficient basis to find that the inmate lacks insight or is “currently dangerous.” And the Court emphasized that a finding of lack of insight supported only by the inmate’s refusal to admit or discuss the commitment offense violates the
regulations barring reliance on such a refusal as a basis for denying parole. Likewise, to the extent that a negative psychological evaluation also rested on the inmate’s refusal to discuss the commitment offense, the reliance on that report is improper. The Court held: “In the circumstances of this case, the
Board’s veiled reliance on petitioner’s continuing refusal to admit guilt clearly
violated its own regulations and cannot be countenanced.”


Furthermore, the Court refused to rubberstamp the Board’s reliance on another convenient rationale for parole denial: the inmate’s disciplinary record, finding that Perez’s rules violations did not “provide some evidence supporting a conclusion that he poses a threat to public safety,” because his
few violations were greatly outweighed by his many in prison “educational and vocational  accomplishments.” Finally, along with much additional and helpful discussion of parole policy, the Court focused on the Board’s “repeated refusal to consider petitioner’s youth at the time of his life crime, despite the explicit constitutional and statutory mandate to do so.” In so doing, the Court cited to both case law and scientific studies recognizing youth and immaturity as a mitigating factor in the
commission of crime.


The Court fittingly concluded that the Board was determined to find a way to deny petitioner parole, even as the evidence supporting a finding of current danger diminished with each year that went by. Unable to justify petitioner’s continued detention on any lawful ground, the commissioners latched onto his continuing claim of innocence, violated the law, and improperly found him suitable based on his refusal to admit to having committed the crime.


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Wednesday, January 18, 2017

People v. Perez (8/1/16): A limited remand required to develop factors for Youth Parole Hearing: Franklin Hearing

Case Name: People v. Perez , District: 4 DCA , Division: 3 , Case #: G050927
Opinion Date: 8/1/2016 , DAR #: 9781

Case Holding:
An 86-years-to-life sentence for a defendant who was 20 years old when he committed three counts of attempted murder and other offenses does not constitute cruel and unusual punishment. Perez, a gang member, shot at three rival gang members, wounding one of them. He was convicted of three counts of premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187), gun use (Pen. Code, § 12022.53, subd. (d)) and other offenses. He received a sentence of 86 years to life. On appeal he claimed the sentence was cruel and unusual, as he was only 20 years of age when he committed the crime. Held: Judgment affirmed; limited remand ordered. In Graham v. Florida (2010) 560 U.S. 48, the court held a life without parole (LWOP) sentence on a juvenile convicted of a nonhomicide offense violates the Eighth Amendment and in Miller v. Alabama (2012) 132 S.Ct. 2455, the court extended this view to a sentencing scheme that mandates LWOP for juvenile offenders. The California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262, found a term of years that exceeded a juvenile offender's life expectancy cruel and unusual punishment. Perez argued the holdings of Graham, Miller, and Caballero should apply equally to defendants of his age. However, because Perez was not a juvenile at the time of the offenses, the considerations in these cases are inapplicable and the Court of Appeal declined to extend them to defendants over the age of 18 years (agreeing with similar holdings in People v. Argeta (2012) 210 Cal.App.4th 1478 and People v. Abundio (2013) 221 Cal.App.4th 1211).

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; THUS--> A CHANGE IN JUDGMENT
Court states: "Although we disagree his 86-years-to-life sentence constitutes cruel and unusual punishment, we must remand the matter for further proceedings consistent with this opinion. We affirm the judgment and order a limited remand.”  



A limited remand is required so defendant may have sufficient opportunity to put on the record the types of information relevant to a youth offender parole hearing. In response to Graham, Miller, and Caballero, the Legislature passed Senate Bill No. 260 (effective January 1, 2014), which created Penal Code sections 3051, 3046, subdivision (c), and 4801, subdivision (c). These sections provide a parole mechanism for juvenile offenders and require the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20th or 25th year of a defendant's incarceration depending on the controlling offense. Several categories of juvenile offenders are excluded, but these exclusions are inapplicable to Perez. Effective January 1, 2016, section 3051 was amended to extend the benefits of the section to anyone who committed his offense before the age of 23. In People v. Franklin (2016) 63 Cal.4th 261, the court found the juvenile offender's constitutional challenges to his sentence had been mooted by the enactment of sections 3051 and 4801, because the defendant might obtain release after serving 25 years of imprisonment. However, the court remanded the matter to allow the defendant to make a record of the kind of information that sections 3051 and 4801 deem relevant to a youth offender parole hearing. Similarly, Perez's case must be remanded to allow him the opportunity to make a record of his characteristics and circumstances at the time of the offense so it may be available to the Parole Board in the future.

The full opinion is available on the court's website here: http://www.courts.ca.gov/opinions/documents/G050927.PDF 


NOTE: Providing a big THANK YOU Central California Appellate Program (CCAP)  a nonprofit law office for providing this condensed version of the PEREZ Case. The summary included the modified Judgement (verbage) allowing an opportunity for defendants (inmates) to develop a Court record for relevant information at a future Youth Offender Parole Hearing.