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)