Thursday, December 2, 2010

In re Twinn 11/23/10 Minimization did not support - that inmate was a current danger!

Once again the "Governator- Arnold" gets Reversed by the Court who concurred with the Board's original suitability (for a release) recommendation.

We will see what JERRY BROWN will bring to the table for Lifers in 2011.


In re Twinn, District: 2 DCA , Division: 7 , Case #: B225943
Opinion Date: 11/23/2010 , DAR #: 17681

The Governor's reversal of the board's recommendation for parole required reversal where the petitioner's past minimization of his role in the crime did not support a finding that he was a current danger.

Appellant beat and killed a man who had assaulted his aunt. The coroner testified that while the death was immediately caused by the man's heart disease, the injuries from the beating contributed to the death. Appellant was convicted and sentenced to 15 years to life.

The Governor reversed the parole board's decision to grant parole based on the gravity of the commitment offense, lack of suitable post-release plans, and lack of insight since petitioner's statements in reports filed in 1991, 1995, and 2000 appeared to minimize his involvement in the offense. Appellant had commented that the death was accidental and caused by a heart attack.

Habeas proceedings ensued and the Court of Appeal reversed. The claim of inadequate post-release plans was not supported by some evidence because petitioner had a verified job offer and planned to live with his wife. And while there was a modicum of evidence in the record that appellant initially minimized involvement, the past minimization is not indicative of current dangerousness. Similarly, while there was some evidence to support the finding that the commitment offense was callous and cruel, there is no rational nexus between the offense and petitioner's current dangerousness.

Monday, November 15, 2010

In re McDonald, 11/2/2010, Denial of involvement in the commitment offense alone is an insufficient basis for denial of parole

Case Name: In re McDonald , District: 2 DCA , Division: 7 ,
Case #:
Opinion Date: 11/2/2010 , DAR #: 16815

The Court finally acknowledges that PC 5011 - no need to admit guilt to be found suitable - must play a role at theses Parole Suitability Hearings, to allow inmates to be found suitable when they can not have insight into a crime they did not commit.

Denial of involvement in the commitment offense alone is an insufficient basis for denial of parole. Petitioner was convicted of second degree murder in 1999. He was tried as an adult, even though the offense occurred when he was sixteen years old. The conviction was based primarily on the testimony of other juveniles. Petitioner had no prior criminal record or history of school misconduct. He had no problems with alcohol or drugs, and during his prison term he had been a model prisoner. His release plans were realistic and positive.

The board found petitioner suitable for parole in 2006 and 2007, but each time the Governor reversed on the basis of the commitment offense and petitioner’s lack of insight and remorse. Throughout, petitioner had denied committing the offenses. In 2009, the board again found petitioner suitable for parole but the Governor reversed again, finding the aggravated nature of the crime and petitioner’s lack of insight based on his claim of limited responsibility suggested petitioner posed an unreasonable public safety risk.

The appellate court upheld the trial court’s grant of petitioner’s habeas, noting that there was no nexus between the commitment offense and petitioner’s level of dangerousness. Further, pursuant to Penal Code section 5011, subdivision (b), a finding of dangerousness can not be predicated on petitioner’s admission of guilt. Although an inmate’s lack of remorse or insight into the offense can be considered in an assessment as to whether he poses a safety risk, when considered in the context of petitioner’s denial of commission of the offense, it alone is an insufficient basis for a finding that he continues to represent a safety threat.

The court found that, contrary to the People’s position, it was not necessary to remand the matter to permit the Governor to reconsider the record. The Constitution provides for a single review by the Governor of a determination by the board and does not authorize repeated reviews of that single determination. Petitioner, who had since been released on parole, was allowed to remain free from custody.

Thursday, October 21, 2010

In re Powell 10/7/10 There was not "some evidence" to support BOARD findings of unsuitability

Another Victory for the inmate -
The Board erroneously found Powell to be unsuitable.
Courts sided with the inmate!

In re Powell from District: 1 DCA , Division: 3 , Case #: A127641
Opinion Date: 10/7/2010 , DAR #: 15629

Case Holding:
There was not "some evidence" to support the parole board's conclusion that petitioner currently posed a danger to society if released from prison.

Petitioner found his girlfriend in bed with another man, and he killed them both. In 1982, he was convicted of two counts of second degree murder and the use of a deadly weapon. In 2009, the parole board denied parole concluding the crimes were especially heinous, petitioner's history was unstable in that he used to abuse drugs and alcohol and had an incident of domestic violence with the victim, he lacked full insight, did not accept responsibility, and did not have an adequate post-release plan. Petitioner filed a petition for writ of habeas corpus, which the superior court denied.

The Court of Appeal reversed, finding these reasons did not withstand scrutiny under the standard of In re Lawrence (2008) 44 Cal.4th 1181, which requires "'some evidence' support the conclusion that the inmate would currently pose a danger to society if released." The commitment offenses and petitioner's prior history were too remote to remain valid indicators of present conduct since petitioner had no violent conduct in the past 29 years. Further, lack of insight and acceptance of responsibility are not even among the suitability factors listed in the regulations, although the former can be probative to the extent it is rationally indicative of current dangerousness, and the latter is closely related to the factor of showing remorse.

In this case, petitioner had accepted full responsibility and the alleged claim of lack of insight was not supported by record. As to post-release plans, the board itself characterized them as "well thought out." Because there was not some evidence to support the board's conclusion, the court remanded for reconsideration with all the available evidence, as that is the remedy consistent with In re Prather (2010) 50 Cal.4th 238.

Thursday, October 14, 2010

In re Kler 10/5/10 - All courts in California have original jurisdiction on a WHC

In re Kler , District: 1 DCA , Division: 2 , Case #: A128153
Opinion Date: 10/5/2010 , DAR #: 15518

The CA Constitution vests all 3 levels of Court in California with original jurisdiction to file a Writ of Habeas Corpus (WHC), the California Rules of Court is contrary to constitutional provisions.


California Rules of Court, rule 8.385(c)(2), which requires that a petition for writ of habeas corpus challenging the denial of parole be denied if it is not first adjudicated in the trial court rendering the underlying judgment, is inconsistent with the California Constitution. In 2009, the appellate court granted petitioner’s petition for writ of habeas corpus that challenged a 2007 parole denial. Following a new hearing, the Board of Parole Hearings found petitioner suitable for parole; but in 2010, the Governor reversed. Petitioner then filed the present petition in the appellate court challenging the action by the Governor.

The Governor argued that California Rules of Court, rule 8.385(c)(2), prohibited the appellate court from entertaining the matter in the first instance. The appellate court disagreed.

California Rules of Court have the force of a statute to the extent they are not inconsistent with constitutional provisions. Rule 8.385 states the Court of Appeal must deny a petition challenging a denial of parole that is not first brought in the trial court. Rule 1.5 (b)(1) defines must as mandatory, whereas rule 1.5 (b)(5) defines should as expressing a preference. Because the Constitution vests all courts in California with original jurisdiction, the rule is contrary to constitutional provisions.

Under the Constitution, while a Court of Appeal may have original jurisdiction in a habeas proceeding, it has discretion to deny a petition not first presented to the trial court. “Among the three levels of state courts, a habeas corpus petition challenging a decision of the parole board should be filed in the superior court, which should entertain in the first instance the petition,” subject to a showing that any extraordinary reason exists for action by a different court. (In re Roberts (2005) 36 Cal.4th 575, 593; In re Hillery (1962) 202 Cal.App.2d 293, 294.) This case presented such an extraordinary reason. Since the issues presented flowed from the appellate court’s previous decision, no court would be better suited to hear the matter.

Monday, August 30, 2010

In re Prather 7/29/10 Court defines BOARD's discretion in Court Ordered BPH Hearings

COURT ORDERED HEARING WILL BE MORE SCRUTINIZED specifically as to what remedies will be allowed by the Court and what "evidence" the BOARD will be allowed to review. Time will tell on how this decision actually plays out in reality. Most likely it will not have a major impact on the ultimate success of litigation.

In re Prather, 50 Cal. 4th 238
Cal Supreme Court case# S173269 and S172903

When a court directs the Parole Board to conduct a new parole-suitability hearing, the court should not improperly limit the type of evidence the board is statutorily obliged to consider. The Supreme Court granted review to settle a split among the appellate courts as to what action a reviewing court could order the Parole Board to take when it grants a new parole-suitability hearing. The court held is improper for the reviewing court to order the board to consider only a limited category of evidence in making its finding. Specifically, the reviewing court should not order the board to consider only new and different evidence that has emerged since the suitability hearing under review. To do so violates the separation of powers doctrine. The board is the administrative agency within the executive branch that is authorized to grant parole, with veto power vesting in the Governor. While judicial review of parole-suitability is proper so that the petitioner has due process, an order limiting the board's discretion as to what factors it can consider on remand "impermissibly impairs the board's exercise of its inherent discretion to decide parole matters."

The Court reasoned that the Board in performing its statutory duty to evaluate current dangerousness, should be allowed to consider the entire record as it applies at the time of remand. But the Court decreed limitations. If the remanding court makes express findings of fact (e.g., not "some evidence" of danger in psych reports; or not "some evidence" of danger in parole plans), on remand, the Board cannot reconsider these factor However, if "new evidence" has materialized since the prior hearing, the Panel may consider not only that evidence, but also how it interrelates with prior evidence, in reaching its current dangerousness assessment.

Justice Moreno in a concurring and clarifying opinion wrote:
"an order expediting a remedy is not improper, particularly if a previous remand was ordered by the court. If a court is faced with slapping the Board's hands on a subsequent challenge to remanded hearing, then a more drastic intervention, such as an outright order that the Board grant Parole, may be warranted."

Thursday, July 8, 2010

Office of the Inspector General finds numerous problems with the BOARD's "hired guns" (Psychologists)

The Senate Rules Committee asked the Office of the Inspector General (OIG) to investigate at least two aspects of the Board’s psych reports: (1) the factual errors in the reports and (2) psychologists who give lifers higher risk predictions than they received in older reports. The OIG found numerous problems with the reports and noted that these problems put the state at risk of legal challenges and they destroy confidence in the parole consideration process. Here are some highlights:

I - Errors in the Forensic Psychological Reports

· Even though psych reports include the statement that the psychologist reviewed the prisoner’s central file, this is not true. They only review a few documents pulled from the central file by records staff.

· The Board does not actually know how many factual errors are contained in psychological reports, but 100% of the reports in a sample from 2009 contained factual errors. Each report had between one and four factual errors. However, the true number of errors is unknown because the commissioners’ reports of these errors are inaccurate and misleading.

· Senior Psychologists, who are supposed to review and approve the reports written by staff psychologists, never check the sources of statements made in the reports, so even obvious errors and misstatements are overlooked when the reports are approved.

II -The Board Does Not Track Bad Psychologists

· The Board does not have a good way to keep track of how many low-risk, moderate-risk, and high-risk predictions psychologists put in their reports, so they are unable to identify patterns and problems. For this reason, the main question the OIG was interested in – whether the new psychologists exaggerate risk – could not be answered.

· The senior psychologists work out of their homes (not in a central office), and the Board does not keep track of what they do with their time, how many evaluations they actually review or the quality of their work.

III - Commissioners and Prisoners/Attorneys Disagree about Reliability of Reports

· Commissioners thought the psych reports were reliable and that very few of them have errors. Lifers’ attorneys, however, believed a much higher percentage of reports had errors, and they generally found the evaluations to be less reliable than commissioners thought they were.

IV - Commissioners, Deputy Commissioners and Senior Psychologists Lack Training

· Penal Code section 5076.6 requires commissioners and deputy commissioners to receive 40 hours of mandatory training within 60 days of their appointment and 40 hours every year after that. Although commissioners did receive the initial training, none of the 10 commissioners on the job long enough received the mandatory 40 hours each year after that. They all received less than half of the mandatory training, and some received as little as 25% of it.

· Only 3 out of the 16 deputy commissioners that were recently hired received the 40 hours of training at the beginning, and only 2 of the 70 total number of deputy commissioners received the mandatory 40 hours after that. On average, they received less than half of the mandatory training each year.

· Government Code section 19995.4 requires senior psychologists to receive at least 80 hours mandatory training within 12 months of their appointment; however, none of the senior psychologists received this training. In fact, one senior psychologist had not received any training as a supervisor until he had been on the job for more than two years.

V- LIFER Hearing Postponements Likely to Increase Again

· For hearings scheduled in or after October 2010, the Board may not have enough psychologists to complete all the necessary reports because 14 staff psychologists they hired for a limited time lost their jobs at the end of June 2010.

VI - OIG Will Review the Quality of Psychological Evaluations

· The OIG is hiring an independent psychologist to study the accuracy and validity of the Board’s psychological evaluations. The OIG will report on that study when it is complete.

The OIG website is at

The full report is available at

Information contributed by: Attorney Keith Wattley

Friday, June 11, 2010

5/24/10 Pearson v. Muntz (9th Cir): State's claims were based on a misreading of Hayward v. Marshall (2010)

Case Holding:

A state-created right, such as California's requirement that parole be granted unless there some evidence of future dangerousness, may give rise to a protected liberty interest that can be enforced as a matter of federal law and via a federal habeas petition. The district court granted the California prisoner's habeas petition because the Governor's decision reversing a grant of parole was not supported by some evidence. The State filed a stay alleging the district court applied the wrong law, and the Ninth Circuit granted the stay until it decided Hayward v. Marshall (2010) __ F.3d __ (06-55392).

In Hayward, the court held that federal habeas claims by California prisoners based on parole denials must decide whether the "some evidence" requirement used by California courts was unreasonably applied. After the Hayward opinion, the Ninth Circuit lifted the stay. The State filed a motion for reconsideration. But because all of the State's claims were based on a misreading of Hayward, the motion for reconsideration was denied.

3/25/10 In re Loresch - Denial of parole to a life prisoner may not be based on the aggravated nature of the crime, by itself!

Case Holding:

Denial of parole to a life prisoner may not be based on the aggravated nature of the crime, by itself, as "some evidence" of current dangerousness. The Governor reversed a decision by the Board of Parole Hearings to grant Loresch parole. The Governor's order rested solely on the aggravated nature of the murder and speculation that the inmate could relapse and render him currently dangerous.

The appellate court rejected the Governor's argument that the remedy, should the petition for writ of habeas corpus be granted, would be to remand for the Governor's further consideration. The opinion implores the Governor to reconsider his views and moderate them so as to restore confidence in the board's determination and stop second guessing parole-suitability determinations made by the experts.

5/12/2010 In re Calderon "INSIGHT" not a factor for SUITABILITY

Court of Appeal First District, Division 2

Case Holding:

Lack of insight is not a factor indicative of unsuitability for parole. The Governor reversed the parole board's decision to grant parole to petitioner, who had committed a murder during the course of a robbery. The Court of Appeal reversed. Besides the gravity of the crime, the Governor found petitioner unsuitable based on continued criminal behavior in prison and his "lack of full insight" into the effects of his prior substance abuse.

The court found the Governor's reasons did not withstand scrutiny under the In re Lawrence (2008) 44 Cal.4th 1181 standards. This crime was no more serious than other second-degree murders. Relevant post-conviction factors do not show current dangerousness since petitioner's brief association with a prison gang ended many years ago. And his alleged "lack of insight" on substance-abuse effects has no basis in the record.

After In re Shaputis (2008) 44 Cal.4th 1241, where the phrase "lack of insight" was mentioned in upholding the Governor's decision on parole ineligibility, it has become the Governor's new mantra. But, it is not even among the factors indicative of unsuitability in the regulations. Lack of insight is probative of unsuitability only to the extent it is supported by the record and rationally indicative of current dangerousness.

Friday, May 14, 2010

5/22/10 FREE LEGAL ADVICE for Families of the Incarcerated

FREE LEGAL ADVICE for Families of the Incarcerated - NO sign up needed - just show up. Attorney Letarte has represented over 1000+ inmates at Parole Suitability Hearings. She also represented inmates in the Court system on Appeals. With her last successful Writs printed on this Blog in the April posting.

Diane T. Letarte, MBA, LLM
Former President, NC Lawyers Club
Judge ProTem – Superior Court of CA
1080 Park Blvd., Suite 1008
San Diego, CA 92101
619-233-3688 Fax: 233-3689

WHEN: Sat 5/22/10 at 9:30am-Noon

First Evangelist Free Church of Los Angeles
1356 Albany St
Los Angeles, CA 90015

9:30 am to 11:30am Tips for Lifers & Family
11:30am to 12:00pm: Qs & As

CONTACT: Amalia Molina or Nasim Khansari 213-438-4820 x16

Sunday, April 25, 2010

4/9/10 Mr. Jimenez found Suitable - Reversing the BOARD's Decision

Another win for the inmates at Chuckawalla Valley State Prison (CVSP).
Our office was successful in getting Mr. Jimenez found suitable through the Court of Appeals. He will be having a new hearing in June 2010 to calculate his Parole Release Date.

(Los Angeles County and Super. Ct. Nos. KA014004, BH005965)

ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Patricia M. Schnegg, Judge. Petition granted.
Diane T. Letarte, under appointment by the Court of Appeal for Petitioner.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Senior Assistant Attorney General, Julie A. Malone, Supervising Deputy Attorney General, Amy M. Roebuck, Deputy Attorney General, for Respondent.

Petitioner Hugo Jimenez seeks review of a September 10, 2008 decision of the Board of Parole Hearings (Board) finding him unsuitable for parole. He contends the Board’s decision is not supported by some evidence of his current dangerousness. (In re Lawrence (2008) 44 Cal.4th 1181.) We agree, and grant the petition.


The petition for writ of habeas corpus is granted, and the Board of Parole Hearing’s September 10, 2008 decision is vacated. The Board is directed to find Jimenez suitable for parole unless, within 30 days of the finality of this decision, the Board holds a parole suitability hearing and finds, based on new evidence, that Jimenez currently poses an unreasonable risk of danger to society if released on parole.

Wednesday, March 17, 2010

In re Juarez - filed March 16, 2010, BOARD abused its discretion - Another Win for inmates!

In re Juarez - filed March 16, 2010,
Court of Appeal, First Appellate District, Division Two
Cite as A125665

SUMMARY: The BOARD abused its discretion and denied Juarez his due process rights by its reliance on three reasons. 1) "Credibility" because he blacked out at the wheel, 2) Heinous nature of offense, and 3) violent criminal history.

No evidence supported parole board decision to deny petitioner parole where petitioner had for some time fully accepted responsibility for his commitment offense and for knowingly driving while high on PCP; not disputed any of the facts of his crime; expressed remorse for killing victim; been a model prisoner, an ongoing participant in Alcoholics Anonymous and a past participant in Narcotics Anonymous; acknowledged that he was an alcoholic and a drug addict; pledged to continue his participation in AA after his release with the help of his family and an arranged sponsor; became a licensed optician and successfully taught other prisoners seeking to become licensed themselves; had a supportive family, realistic parole plans, and multiple job offers; and had undergone three recent psychological evaluations which concluded that he posed a low risk for violence if released.

Given petitioner’s acknowledgment of responsibility for his commitment offense and the substance abuse that caused it, his lack of memory of the incident was not probative of current dangerousness and board abused its discretion in relying on questions about petitioner’s credibility in denying parole. No evidence supported board’s conclusion that petitioner’s commitment offense was carried out in "an especially heinous, cruel and callous manner" nor was there a rational nexus between the nature of his offense and any current dangerousness where incident took place 27 years earlier when petitioner was a young man with a substance abuse problem who unintentionally killed a man in a traffic collision he caused while driving under the influence of narcotics and speeding away from police. Petitioner’s prior criminal history did not support the conclusion that he was currently dangerous where his prior offenses mostly involved reckless behavior while under the influence of an impairing substance and belligerent behavior when confronted by police and did not demonstrate an escalating pattern of criminal behavior or a significant history of violent crime.

DISPOSITION: The petition for writ of habeas corpus is granted. The Board is directed to hold a hearing within 30 days of the finality of this decision, find Juarez suitable for parole, and set sentence appropriate to this determination, unless new evidence of his conduct and/or change in mental state subsequent to the 2008 parole hearing is introduced and is sufficient to support a finding that he currently poses an unreasonable risk of danger to society if released on parole.

Full text

Tuesday, March 16, 2010

In re Moses - March 16, 2010, Governor's Parole Date reversal found unacceptable

In re Moses - filed March 16, 2010,
Court of Appeal - First Appellate District, Division Two

Cite as A124814

SUMMARY: An inmate served 29 years of a 17-years-to-life prison term for second degree murder and had an exemplary prison record, and Governor’s asserted reasons for denying parole:

1) that the murder was "especially atrocious,"
2) that inmate had maintained claim of self-defense, and
3) that he "had a significant record of criminal violence"

The Governor's characterization are not supported by the evidence in the record, the inmate was entitled to release on parole.

DISPOSITION: The petition for writ of habeas corpus is granted. The Governor is hereby ordered to vacate his decision of June 23, 2008, which reversed the Board‘s July 2007 grant of parole. The Board‘s July 2007 grant of parole is reinstated. In the interests of justice, this opinion is made final as to this court seven days from the date of filing.

Full text

Wednesday, March 3, 2010

Marsy's Law (Prop. 9) - where are we now?

There has been several cases contesting Marsy's Law (Prop. 9). One of the trail blazer case was Gilman et al. V. Schwarzenegger et al. it raised several issues.

Unfortunately, for most lifers, it’s still a wait and see for any Ex Post Facto arguments under Prop 9.

Current Status:
- The District Judge dismissed the Lifer's Due Process claim against Proposition 9.

A preliminary injunction (PI) was granted to the specifically named plaintiffs. The State appealed. An argument in the circuit Court is set for April 13, 2010 to argue who else the preliminary injunction will apply to vis-a-vis inmates. The Order certifying the matter as a class action is pending on the state’s appeal. There is currently no stay on the Preliminary Injunction. The is no briefing scheduled yet. Let's keep an eye on this one!

There is ongoing discovery and of course the original action is on going based on the Civil Rights Act of 1871 which can be found in Title 42, section 1983, hence the well known name of the"1983" civil lawsuit.

We are all hoping for a win in the appeal of the class certification. This would allow to move for an expansion of the preliminary injunction to all class members !

(See our prior 2009 "Proposition 9" posting in this Blog)
Federal Defender (Eastern District) in Gilman et al. V. Schwarzenegger et al. (CIV-S-05-830 LKK GHH)

Eastern District with the UC Davis Law School of Civil Rights Clinic (Section 1983)
Lead Federal Public Defender: Monica Knox email:

===== Other interesting cases on Ex Post Facto issues ============

In Thomas v. Yates (E.D. Cal. No. 05-1198) The District Judge has scheduled an evidentiary hearing to determine whether the Governor's use of his reversal power under the 1988 initiative is Ex Post Facto when applied to Lifers whose offenses occurred before the date of enactment.

In Biggs v. Schwarzenegger (E.D. Cal. No. 07-470; 2009 WL 4048109) also in a challenge to the Governor's Parole power of Reversal, the Magistrate has granted the Lifer's motion for additional Discovery.

Monday, February 1, 2010

260 Inmates released in San Diego - per Federal Court Order

California is under a federal court order to cut the number of inmates by 40,000 — from about 168,000 now — over several years to ease overcrowding and improve health care in the state’s 33 prisons.

The new Law took effect in January and had an immediate effect in San Diego County, where about 260 nonviolent offenders were released.

Statewide, corrections officials launched their plan to reduce the prison population by 6,500 inmates (this year's plan) and save the state more than $100 million over the next year. They said some of the revamped program’s elements will cut down on recidivism and allow parole agents to focus attention on more dangerous former convicts.

This is GREAT news..... EXCEPT that the LIFER inmate population will not be affected by this reduction. In addition, Non-Lifer Inmates jailed for serious or violent crimes, including burglaries, robberies and sexual assault will also be disqualified for release.

see Full news story

Wednesday, January 20, 2010

December 23, 2009- A case to Watch! : Magistrate Order - Release on Parole immediately

The Judge has not adopted the Magistrate's Recommendation, at this time.
*** This is a preliminary CASE to WATCH! ***
NOTE: The AG has objected and petitioner's reply is due 02-05-10.

Martinez v. Hartley, 2009 U.S. Dist. LEXIS 119255
December 23, 2009


Petitioner was sentenced to 15 years to life in prison after being convicted of second-degree murder in the Los Angeles Superior Court. Petitioner was committed to prison on September 8, 1987 with a minimum eligible parole date of September 7, 1997. The Board of Parole Hearings (the Board) granted Petitioner parole but the Governor of California reversed the grant.

Petitioner filed a petition for writ of habeas corpus in the Superior Court challenging the Governor's reversal on February 17, 2006. The court denied the petition on the basis that Petitioner's commitment offense alone was sufficient evidence on which the Governor could rely to reverse the grant. Petitioner filed petitions for writ of habeas corpus with the California Court of Appeal and the California Supreme Court. The appellate court denied the petition holding that there was "more than a 'modicum of evidence' to support the Governor's decision". The California Supreme Court denied the petition without comment.

Petitioner filed the instant petition with the Federal - United States District Court claiming that his due process rights were violated when the Governor relied solely on the commitment offense to reverse Petitioner's grant of parole.

The Governor's reversal does mention the fact that Petitioner claimed that the killing was done in self defense until the 1990's but then goes on to note that Petitioner "has since then maintained that he accepts full responsibility and has remorse for [victim]'s murder." There is no evidence to support an inference that Petitioner is currently dangerous because he has not admitted the severity of or taken full responsibility for the murder. While the underlying offense may indeed have been grave, the standard by which the Governor must review the parole grant is whether Petitioner poses a current risk of danger to society, not whether he was dangerous at some point in the past--the Governor points to no evidence of the former.

Accordingly, because the Superior Court did not cite to a single fact in the record demonstrating Petitioner's current dangerousness, we find that the court unreasonably applied the clearly established "some evidence" standard. Furthermore, even if the Superior Court had articulated the correct standard, this Court finds no evidence in the record to support the Governor's finding that Petitioner poses a current risk of danger to society.


For the reasons set forth above, we find that the Petitioner is being held in violation of the Constitution and that the Superior Court's application of the "some evidence" standard is objectionably unreasonable.


Accordingly, the Court HEREBY RECOMMENDS that:

1) Petitioner's petition for writ of habeas corpus be GRANTED;

2) Petitioner should be released on parole immediately; and

3) The CDCR should be DIRECTED to credit the number of days from the date of the Governor's reversal (July 19, 2005) to the day Petitioner is released towards Petitioner's parole sentence.


Monday, January 4, 2010

December 11, 2009 - Inmate's WHC granted to reinstate Parole Grant against Governor's reversal

PROCEDURAL POSTURE: Appellant warden sought review of an order from the Superior Court of Los Angeles County (California), which granted respondent inmate's petition for a writ of habeas corpus challenging the Governor's reversal of a Pen. Code, § 3040, decision from the California Board of Parole Hearings that had granted the inmate parole.

OVERVIEW: The inmate, who caused a fatal accident while driving under the influence, had no previous criminal record other than one adult conviction for driving under the influence. He was not subject to any disciplinary action while in prison, participated in self-help programs and therapy, and tutored other inmates. The superior court, upon concluding that the Governor's reversal of the parole decision was not supported by some evidence of danger to society and that the Governor's reconsideration would be futile, reinstated the board's decision. The court held that the order reinstating the decision did not divest the Governor of the right to review parole decisions under Cal. Const., art. V, § 8, subd. (b), and Pen. Code, § 3041.2, because the Governor had reviewed the decision. The Governor therefore was given a full opportunity to exercise the constitutional and statutory right of review. Remanding the matter to the Governor would be an idle act and would render meaningless the inmate's due process rights and the writ of habeas corpus. Because the warden did not provide analysis or authority to support a separation of powers argument, the court considered that claim of error forfeited.

OUTCOME: The court affirmed the order of the superior court.

In re Masoner, 179 Cal. App. 4th 1531 (Cal. App. 2d Dist. 2009)