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Friday, December 11, 2020

LA's New DA George Gascón's default policy : DA will not attend parole hearings & will support in writing the grant of parole when the minimum Eligible date has been reached.

George Gascón, A former beat cop, Assistant Chief of the Los Angeles Police Department and elected District Attorney, George Gascon's 40-year career in law enforcemnts has taken him from the streets of LA to the highest ranks of Law Enforcement and the Courtroom.

In his inauguration speech, Gascón said his time as a hard-charging LAPD cop in the 1980s and '90s helped shape his transformation into an advocate for wide-ranging criminal justice reforms. Gascon announced a sweeping range of reforms when he was sworn-in Monday, including no longer seeking the death penalty and not using gang enhancements for sentencing. 

Supporters of Gascon, say he is correct to try to reduce mass incarceration in California and instead seek more rehabilitative solutions in addition to mental-health treatment for offenders.

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More specifically information (below) to help the incarcerated population; it will be at their Parole Suitability Hearing...... Continue reading the excerpts below.

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 LA DA recognizes that parole is an effective process to reduce recidivism, ensure public safety, and assist people in successfully rejoining society. The CDCR’s own statistics show that people paroled from life terms have a recidivism rate of less than four percent.

LA DA states: we are not experts on rehabilitation. While we have information about the crime of conviction, the Board of Parole Hearings (BPH) already has this information.

Further, as the crime of conviction is of limited value in considering parole suitability years or decades later, (see In re Lawrence (2008) 44 Cal.4th 1181; In re Shaputis (2008) 44 Cal. 4th 1241, 1255), the value of a prosecutor’s input in parole hearings is also limited. Finally, pursuant to Penal Code section 3041, there is a presumption that people shall be released on parole upon reaching the Minimum Eligible Parole Date (MEPD), their Youth Parole Eligible Date, (YEPD), or their Elderly Parole Date (EPD).

Currently, sentences are being served that are much longer than the already lengthy mandatory minimum sentences imposed. Such sentences are constitutionally excessive. (See In re Palmer (2019) 33 Cal.App.5th 1199.)

This LA’s Office’s default policy is that we will not attend parole hearings and will support in writing the grant of parole for a person who has already served their mandatory minimum period of incarceration, defined as their MEPD, YEPD or EPD.

However, if the CDCR has determined in their Comprehensive Risk Assessment (CRA) that a person represents a “HIGH” risk rating for recidivism, the DDA may, in their letter, take a neutral position on the grant of parole.

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This SEA OF CHANGE is beyond our wildest hopes and dreams as Criminal Defense Attorneys. This is amazing! As a parole specialist, the fact that LA will now be supporting, instead of opposing, the majority of inmates (at parole hearings) is AMAZING.  

NOTE:  For someone who meets the specified criteria (over 15 years incarcerated, age, covid risks, etc) they can make a  direct  request for 1170(d) resentencing at the District Attorney's office. 

As a reminder:

In June 2018, the Legislature passed and Governor Brown signed Assembly Bill(AB) 1812,
which amended Penal Code § 1170(d)(1). The new law took effect immediately. 


Penal Code § 1170(d)(1) authorizes a court  to recall a sentence and resentence a person to a lesser sentence in two circumstances: (1) on the court’s own motion within 120 days after sentencing,  or (2) at any time upon a recommendation from the California Department of Corrections (CDCR) or  the Board of Parole Hearings (BPH) (or, for people in county jails, are commendation from the county correctional  administrator). The  CDCR’s  current  regulations about §1170(d)(1)  sentence  recall recommendations are in the California Code of Regulations, Title 15, §§3076-3076.2.  In  the  past,  the  CDCR  rarely  used  its  authority  to recommend sentence recalls. Now, they should because AB 1812 grants additional funds to the CDCR to investigate potential cases to refer for recall of sentence.


Tuesday, November 24, 2020

10/27/20 In re TERRELL CURRY Superior Court (LA): Board can not use "plausible discrepancies" against Inmate version to deny parole, among other factors discussed.

 This October 27, 2020 Superior court case is great for specific factors  that come up all the time at a parole hearing. Does the inmate "lie" to agree with "the record" or provide his story that is inconsistent with the record? DOes a CDC-128 counseling chrono provide "some evidence" of dangerousness to be denied parole?  Read below and see what the LA Superior Court thinks.

A big "Shout Out" to Michael J. Brennan, Esq. and Heidi L. Rummel, Esq., of the Post Conviction Justice Project at the University of Southern California Gould School of Law who represented the Petitioner Terrell Curry.

We have pulled out a few paragraphs (here)  from the decision that explains that an inmate (among other factors) does not have to agree with “the record” if his version is ….as the court states:

    Given that Petitioner's version is not "physically impossible" and "do[es] not strain credulity," and that there is every indication that he has accepted full responsibility for his crime and the harm that he placed everyone in that night, the Board is not permitted to use these plausible discrepancies against him to deny parole. (In re Palermo, supra, 171 Cal.App.4th at p. 1112.)

The court goes on to explain that even a small Rule Violation (RVR)  (aka CDC-128) does not provide “some evidence” of unsuitability  if the inmate has a long history of good conduct.

……when an inmate has a track record of positive rehabilitation and generally has few rules violations, a non-violent counseling chrono "does not provide any evidence indicating a rational nexus between the misconduct and the Board's conclusion that [the inmate] poses a current danger to society." (In re Perez, (2016) 7 Cal.App.5th 65, 96.)


Below is an excerpt of the Memorandum of Decision by the Los Angeles Superior Court granting the writ of habeas corpus. Although it can not be cited, it contains good case Citation that can be used for arguments and to "make a record" during a BPH Parole Hearing.

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
October 27,2020
Honorable: WILLIAM C. RYAN
BH012985
(Underlying Criminal Case No. BA214317-02)
In re TERRELL CURRY, Petitioner on Habeas Corpus


FACTUAL BACKGROUND

Petitioner is serving an indeterminate life sentence following his conviction for two counts of attempted murder of a police officer, two counts of assault on a police officer with a firearm and one count of assault with a firearm. He is currently serving his sentence at the California Correction Institution, located in Tehachapi, California.

On March l3, 2018, the Board of Parole Hearings (2018 Panel or the Board) convened an initial youth offender parole suitability hearing where it found Petitioner unsuitable for parole based on his credibility regarding the offense. (Hearing Transcript, dated Mar. 13, 2018, attached to petn. as Exh. E.) The 2018 Panel also questioned if Petitioner's low comprehensive risk assessment rating would have remained low if he had explained his version of events to the psychologist the way he explained it to the 2018 Panel. On April 10, 2019, Petitioner filed a writ of habeas corpus contending "there is no evidence that [Petitioner] poses a current danger to society." (Petn. at p. 3.) This court dismissed the petition as moot because Petitioner's next Board hearing was scheduled for August 22,2019.

On August 22, 2019, the Board of Parole Hearings (Board) convened a first subsequent parole consideration hearing where it found Petitioner unsuitable for parole based on the commitment offense, petitioner's violent criminal history, a CDC 128-A Counseling Chrono (Counseling Chrono) he received one month before the current hearing, and lack of credibility and minimization. The Board issued a 3-year denial. (Hearing Transcript (HT) dated Apr. 28, 2020, at pp.81-89.)


April 28, 2020, Petitioner filed the instant writ of habeas corpus contending that the Board improperly relied on the counseling chrono to deny him parole because there is no nexus between the chrono and his current dangerousness, and that the Board may not deny parole if Petitioner's version of events is "not physically impossible" and does "not strain credulity such that ,the [inmate's version] is delusional, dishonest, or irrational." (Petn. at p. 21. [brackets in original]; quoting In re Palermo (2009) 171 Cal.App.4th 1096, 1110-1112.)

On June 10, 2020, the undersigned issued an Order to Show Cause, finding Petitioner made a prima facie showing that he is entitled to habeas corpus relief. (Cal. Rules of Court, rule 4.551(c)(1).) The court asked the parties to specifically address the Court of Appeal's opinions in In re Palermo (2009) 171 Cal.App.4th 1096 and In re Perez (2016) 7 Cal.App.5th 65, and how they relate to Petitioner's recent institutional misconduct and his differing version of the commitment offense.

On August 19, 2020, Respondent filed a Return asserting that there is "some evidence" to support the Board's decision that Petitioner is 'unsuitable for parole due to his recent institutional misconduct, his lack of credibility, and his continued minimization of the commitment offense. (Return at pp. 3-6.)

On September 18, 2020, Petitioner filed a Traverse. Petitioner asserts that there is no "rational nexus" between the "minor counseling chrono" he recently received and the commitment offense as explained by the Board and therefore it cannot support a finding of unsuitability. (Traverse at pp. 1- 4.) He also contends that the Board's denial of parole based on his plausible version of the commitment offense is improper and is a violation of due process. (Id. at pp. 4-6.)

The court finds an, evidentiary hearing is unnecessary because determining whether Petitioner is entitled to relief does not depend on the resolution of an issue of fact. (Cal. Rules of Court, rule 4.551(f).)

SUMMARY

Having independently reviewed the record, and giving deference to the broad discretion of the Board in parole matter, the court finds that the record does not contain "some evidence" to support the Board's determination that Petitioner is unsuitable for release on parole.

Given that Petitioner's version is not "physically impossible" and "do[es] not strain credulity," and that there is every indication that he has accepted full responsibility for his crime and the harm that he placed everyone in that night, the Board is not permitted to use these plausible discrepancies against him to deny parole. (In re Palermo, supra, 171 Cal.App.4th at p. 1112.) Accordingly, the court finds the record contains no evidence supporting a finding that there is a nexus between Petitioner's version of the commitment offense and his current dangerousness.

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The Board's minimization finding is not supported by any evidence. There is every indication in the record that Petitioner understands the danger the community and the deputies were put in that night and has worked for over 15 years to educate himself and program in an effort to rehabilitate. (RT at p. 82.) The Board erred in this regard.

Petitioner's institutional misconduct, even the minor misconduct, indicates that Petitioner is either unable or unwilling to conform to the requirements of the law and may constitute some evidence that Petitioner is a current danger to public safety and therefore unsuitable for parole. (See In re Reed, supra, 171 Cal.App.4th at pp. 1084-1085; In re Montgomery (2012) 208 Cal.App.4th 149, 164.) However, when an inmate has a track record of positive rehabilitation and generally has few rules violations, a non-violent counseling chrono "does not provide any evidence indicating a rational nexus between the misconduct and the Board's conclusion that [the inmate] poses a current danger to society." (In re Perez, (2016) 7 Cal.App.5th 65, 96.)

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The Board ultimately concluded, however, that the positives were outweighed by circumstances not supportive of his suitability for parole. This court is not entitled to reweigh the evidence before the Board; rather, it is tasked with determining whether the record contains some evidence in support of the Board's conclusion. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 656, 665-677.) As discussed ante, the court finds the record does not contain evidence to support the Board's conclusion, and that there is no rational nexus between the evidence in the record and the Board's determination of Petitioner's current dangerousness.

DISPOSITION

For all the foregoing reasons, the petition for writ of habeas corpus is GRANTED. The Board of Parole Hearings is ordered to conduct a new parole hearing within 60 days of finality of this order consistent with applicable law and this decision.

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Friday, October 30, 2020

CDCR’s 4-phase Roadmap to Reopening , to be disclosed later this year

 In response to the pandemic caused by coronavirus disease (COVID-19), and out of an abundance of caution, California Department of Corrections and Rehabilitation (CDCR) and California Correctional Health Care Services  (CCHCS)  have  been  taking  necessary  precautions  to  reduce  risk  of  exposure  to  both  inmates and staff and to mitigate morbidity and mortality related to the disease.

The  purpose  of  this  BLOG is  to  provide  updated    information   since  March 20, 2020, (closing of CDCR visits) and to update some initial activities associated with beginning a  four-phased approach (4 Phase)  to   reopening   operations   within   CDCR   that   is   consistent   with   he   Governor’s Roadmap to Reopening California.  

The Roadmap lays out 4 phases of opening, Phase 1, the most restrictive - basically, noting going on. Various activities are made available and restrictions lifted in the remaining 3 phases, until Phase 4, promises “Return to ‘new’ normal program for all staff and the population.” No indications what the ‘new’ normal will be.

Details of Phase 2 Operations within CDCR/CCHCS are available in the Roadmap to Reopening Plan, which will be distributed later this year. In general, operations during Phase 2 are still restricted to include, but not be limited to, modified reception  center  intake  to  allow  adequate  social  distancing  and  separation  of  populations, transfer to camps and essential health care related transfers and encounters. Additional details for screening, housing, testing and basic strategies to reduce spread of COVID-19 infections are

As of October 2020, the official acceptance of CDCR’s Roadmap to Reopening still has not yet been publicly released, but conditions will be laid out therein, will be, those governing quotas for reopening of the prisons. Each prisons will be similar to the different counties we have experienced in the State of California, with different opening rules, (based on COVID19 cases or lack thereof). Reopening with CDCR (prisons) meaning the reinstatement of visiting, programs and other things that pass for ‘normal’ inside.

Of prime interest is the reopening of visiting, which the Roadmap provides can be expected in Phase 2, with very restrictive guidelines will reopen with  one visitor per inmate for an hour visit once a month, with staggered visiting schedule, mandatory masks, tables/chairs 6 feet apart and, reportedly, no personal contact (read hugs, kisses). This phase also may include the entrance of some outside vendors, non-essential contracts—read possibly some programs.

Phase 3 could see an expansion of visiting, 2 visitors per prisoner, twice a month, remaining restrictions apply. This would also include the re-opening of family visits, for one family visit per week per unit. Other restrictions regarding yard access, day room access and workers would be eased as well.
 
The key to the Roadmap is that each prison’s reopening will be decided by the local administration, in consultation with Sacramento and subject to guidelines as to where that institution is in the CoVid situation. Again similar to guidelines we encountered throughout 2020 in the State of CA and its different counties.

For example:  (The Roadmad has not yet been published and the example is subject to change)

Phase 2 calls for a ‘contained’ CoVid outbreak, which includes no new CoVid cases (inmate or staff) in a “rolling 14-day cumulative case rate.”

To move from Phase 2 to Phase 3 will require no new cases in a 60-day period and no current positive inmates.

Phase 3 to Phase 4, the establishment of the ‘new normal,’ calls for no new or positive cases for 90 days, but the possible continuation of precautionary measures like face masks and extra cleanings.

As of now, the end of October, no prison yet qualifies for the move from Phase 1 to Phase 2.  

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A big Thank You to the CDCR department’s website for some transparency of the information along with Vanessa from Life Support Alliance (a.k.a. LSA) who continues to be a wealth of information for the inmate Population and their Loved ones!