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.