In re Lira 12/6/2011: Entitled to credit to reduce his parole term

Case Name: In re Lira , District: 6 DCA , Case #: H036162
Opinion Date: 12/6/2011 , DAR #: 17446

In Short:
Due to the Governor's erroneous reversal of the Board's grant of suitability, the inmate is entitled to credit for days of unlawful imprisonment to reduce his parole term!

Case Holding:
A lifer inmate held in prison following the Governor's erroneous veto of the Board of Parole Hearing's order for his parole release is entitled to reinstatement of the Board's order and credit for days of unlawful imprisonment to reduce his parole term. Johnny Lira was released from an indeterminate life sentence for a murder committed in 1980, after he had been found unsuitable by the Board in 2005 and suitable in 2008, with that order vetoed by Governor Schwarzenegger.

In 2009, the Board again found Lisa suitable for parole and Governor Brown declined to review the decision. In habeas proceedings, Lira claimed four years of credit for the period of incarceration after the Board's 2005 denial, and for his further incarceration caused by the Governor Schwarzenegger's veto. The trial court granted habeas relief with credit after the 2005 denial.

The appellate court partially disagreed, finding that imprisonment was lawful until the 2008 suitability finding and credit allowed only from the date of veto. The Governor's decision was not supported by "some evidence" and was erroneous. The reversal of the Governor's veto and reinstatement of the Board's finding establishes that the inmate should not have been incarcerated beyond the Board's original 2008 suitability finding. Thus, the appellate court gave credit from the 2008 original Suitability year.

(Note: Penal Code section 3000.1, providing that a person convicted of murder after January 1, 1983 is subject to a lifetime of parole and service of five continuous years on parole prior to discharge, did not apply in this case.)

Irregularities in OAL approval of Section 2240 of Title 15 Forensic Assessment Division (FAD)

While the OAL approved the change to section 2240 of Title 15 regarding the Forensic Assessment Division (FAD) and psych evals, there were some irregularities in this approval and Life Support Alliance (LSA, 916-402-3750), in conjunction with legal advisers, is contemplating a challenge to the approval. Opinions/thoughts from the legal minds is requested by Vanessa Nelson at lifesupportalliance@gmail.com.

OAL's approval of 2240 changes became effective Nov. 24, 2011, thus codifying the Forensic Assessment Division and psychological evaluations. These amendments imply that the LIFER inmates will be mandated to present themselves (among others) at the Forensic Psychological Evaluation interview that is normally done before a LIFER Parole Suitability Hearing is completed.

In addition, BPH in its Revised Initial Statement of Reasons to its proposed amendments misrepresented Psychologists participation and conclusions. No consensus was ever reached about 'state of the art,' risk assessment instruments.The three (3) actuarial instruments used have not been validated with the LIFER population.

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Dr. Barry Krisberg Berkeley Law school states:

It has come to my attention that the Board of Parole Hearings, in its Revised Initial Statement of Reasons to its Proposed Regulation 15 CCR §2240, has misrepresented my participation in a meeting with the Board on August 2, 2006. According to the Statement of Reasons, "the Board of Parole Hearings convened a meeting of experts from the forensic scientific community," including myself, "to reach a consensus, based on the 'state of the art,' what risk and needs assessment instruments would best be employed by the State of California for adult inmates sentenced to a life term with the possibility of parole."

The Board's Statement of Reasons appears to imply that this panel reached such a consensus and agreed that a battery of risk assessment tools should be administered to term-to-life prisoners. The Board states, "The panel determined that the two best objective risk assessment tools to employ on the population of adult inmates sentenced to a life term with the possibility of parole were the Level of Service/Case Management Inventory (LS/CMI) and the HCR‐20 (Historical, Clinical, and Risk Management). Both the LS/CMI and HCR‐20 would be administered to the inmate as part of the risk assessment battery."

This is a misrepresentation of the meeting that I attended; the panel reached no such consensus, and I continue to disagree with the administration of these risk assessment tools to term‐to‐life prisoners. Neither the LS/CMI nor the HCR‐20/PCL‐R has been validated for a population such as California's term‐to‐life prisoners.
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There were many issues raised in objection to this Amendments and they were not answered. There is a consensus (by the criminal defense attorneys, among others) that this OAL approval was improperly done.

If you are a defense attorney representing an inmate at their LIFER Parole Hearing be mindful of this new Section 2240 Amendment and all of its impact if you chose to advise your client not to attend the Psychological interview. If you are not an Attorney, please Consult an Attorney that emphasizes representation in this area of law.

Ochoa v. Sup. Court of Santa Clara Court- CONFIDENTIAL FILE access

Case Name: Ochoa v. Sup. Court of Santa Clara Co. , District: 6 DCA ,
Case #: H036970
Opinion Date: 10/13/2011 , DAR #: 15203

QUICK GLANCE: Confidential File portion in the Inmates Central File MAY be access via a Court "in camera" hearing with the Warden must be present. This is to determine how much of the confidential information CAN be disclosed without disclosing the informant's identity.

Case Holding:
In a parole proceeding, the warden may decline to disclose the identity of a prison informant against the inmate if there is a valid state interest in keeping the informant's identity confidential.

Glasgow was convicted of first degree murder in 1980 and sentenced to state prison for thirty years to life. In 2010, the Board of Parole Hearings (Board) found him suitable for parole but the Governor reversed the decision, based, in part, on confidential information that Glasgow sold his prescribed pain medication to other inmates.

Glasgow challenged the decision in a writ action and the superior court ordered disclosure of the confidential information or reconsideration of parole without the information. The appellate court issued a peremptory writ vacating the order.

An inmate seeking parole does not have the same minimum due process rights as the parolee in a Morrissey hearing (Morrissey v. Brewer (1972) 408 U.S. 471.) Instead, the rights of an inmate seeking parole are considered on a case by case basis, with the state's interests weighed against those of the inmates. For security and safety, the warden may refuse to disclose confidential information (Evid. Code, sec. 1040). If a claim of privilege is made, the court may require an in camera hearing to determine if the information is privileged and if it is, it may not be disclosed.

Here, the superior court, in an in camera hearing, determined that the confidential documents were relevant and reliable, allowing the warden to exert non disclosure under section 1040.

However, the appellate court concluded that an in camera hearing with the warden must now be held to determine how much of the confidential information could be disclosed without disclosing the informant's identity, such that Glasgow's rights to a fair parole determination can be balanced with the state’s right of nondisclosure.

Inmates on a 9-day-old hunger strike at CDCR

(Reuters) - Thousands of inmates in up to eight California prisons have taken part in a 9-day-old hunger strike, demanding an end to what they call inhumane conditions, prison officials and an inmate advocacy group said on Tuesday.

The California Department of Corrections and Rehabilitation was counting 1,186 inmates in four prisons as participating in the hunger strike as of Tuesday, down from more than 4,200 inmates at eight prisons on September 29.

But a prisoner rights group put the number of strike participants higher, saying as many as 12,000 inmates at eight California state prisons have taken part in refusing to eat.

The protest comes as California has begun carrying out a state-mandated plan to ease prison overcrowding by shifting responsibility for thousands of inmates and ex-convicts to county authorities.

The current hunger strike grew out of a protest started in July by prisoners housed in Northern California's Pelican Bay State Prison.

Inmates there were pressing a list of five demands -- an end to group punishments; an end to a policy that requires an inmate to identify fellow gang members in exchange for getting out of solitary confinement; an end to long-term solitary confinement; adequate and nutritious food; and greater privileges for prisoners confined to isolation indefinitely.

The original Pelican Bay strike ended in late July after prison officials promised some concessions. But the protest resumed on September 26 after inmates complained their concerns were not immediately addressed. The strike has since spread to prisons throughout the state.

The prison strike run from Northern CA at Pelican Bay all the way down to Southern CA at Ironwood State Prison (ISP).

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Monday 10/4/2011: State corrections officials said the number of striking inmates is far lower than reported by advocates. As of Monday, officials said there are 1,245 inmates at 4 prisons who have missed nine or more consecutive meals since Sept. 26. The number of inmates who had missed nine or more consecutive meals peaked Sept. 29 with 4,252 inmates at 8 state prisons.

CDCR Report to meet June 2012 Population Reduction Benchmark

CDCR Files Report with Court Showing State Will Meet June 2012 Population Reduction Benchmark.

Unfortunately, this reduction will not impact the LIFERs, which are considered to have a VIOLENT offense, thus not qualifying for the reduction.

The California Department of Corrections and Rehabilitation (CDCR) expects to meet the Three-Judge Court’s July 27, 2012, benchmark for reducing the state’s inmate population, according to an August 16, 2011, report filed by the department. The report shows CDCR will reduce its inmate population to 155 percent of prison design capacity by the court’s benchmark date of July 27, 2012.

A new CDCR website can be viewed:
www.cdcr.ca.gov/News/3_judge_panel_decision.html



To assist in the reduction, as of October 1, 2011 Implementation of the Realignment will begin. All individuals sentenced to non-serious, non-violent or non-sex offenses will serve their sentences in county jails instead of state prison. No inmates currently in state prison will be transferred to county jails or released early.

The 3-ring Circus: Marsys' Law: thumbs up or down?

We previously reported (in this Blog) on In Re Vicks as a "good" Lifer cases, that concluded Marsy's law to be a violation the Ex Post Facto Principle. If we look at 3 consecutive months of Decisions, we find a "mix" analysis from the San Diego County 4th District Court of Appeals.

Unfortunately, the In Re Russo panel recently issued another published ruling In re Aragon, where it rejected its sister panel's In re Vicks analysis and reinforced its own In re Russo analysis!!!

Therefore, we must wait the finality of these 3 cases stated below, to know where Lifers stand on the State-Court rulings on the Question: "Is Marsy's Law considered Ex Post Facto as applied to the Lifers whose crime occurred PRIOR to Proposition 9 (aka Marsy's Law, 2008)?

CONFLICTING COURT CASES:

In re Russo (2011), Cal.App.4th (No. D057405 Fourt Dist.. Div One. April 8, 2011)

In conclusion, the Court held that Marsy's law was just an "admistrative method by which a parole release date is set..." and concluded that no ex post facto violation occurred.

In Re Vicks (2011), Cal.App.4th (No. D056998. Fourt Dist.. Div One. May 11, 2011).

In conclusion, the Court conclude the application of the amendments to Penal Code section 3041.5, subdivision (b), to inmates whose commitment offense was committed prior to the effective date of Marsy's Law (November 5, 2008) violates ex post facto principles.

In re Aragon (2011), Cal.App.4th (No. D058040 Fourt Dist.. Div One. June 9, 2011).

In conclusion, the Court rejected the In re Vicks panel's conclusion and stated that Marsy's Law does NOT violate the ex post facto principles.

In re Ryner 6/10/11: Prior Board decision are NOT suff. evidence to Reverse Grant

Another win for the Lifers! The Governor can not reverse a finding of Suitability by reaching back to a Prior Board's decision to find evidence for the reversal.


Case Name: In re Ryner , District: 6 DCA , Case #: H035893
Opinion Date: 6/10/2011 , DAR #: 8563

Case Holding:
Prior Parole Board decisions are not independent evidence sufficient to support the Governor's current reversal of the Board's finding of parole suitability. At the 2009 parole suitability hearing, the Board of Parole granted petitioner parole. The Board noted that although a 2008 psychological evaluation called for petitioner's further exploration of issues that resulted in the commitment murder offense, petitioner had since addressed these issues.

The Governor, referencing prior Board findings as to the nature of the commitment offense, the 2008 psychological evaluation addressing petitioner's lack of insight into motivation for the murder, and petitioner's failure to avail himself of programs, reversed the Board's ruling, finding appellant continued to represent a threat to public safety.

The appellate court agreed with the superior court's rejection of the Governor's basis for finding petitioner unsuitable for parole. In conducting its review of the Board's decision, the Governor is required to consider the same factors considered by the Board and the opinions of previous Board decisions do not constitute independent evidence of petitioner's suitability for parole.

Remand to the Governor for further action was not a proper remedy in this case because the court's review of the record before the Board and the Governor produced no evidence that would support any action other than petitioner’s release on parole.

In re Nguyen 5/23/11 Governor Reversal using Psych eval - not supported by evidence

In re Nguyen, G043844

Another big win for the inmates. Governor can not find fault in the Psychological evaluation and expect that fault to be considered "some evidence" to support a reversal!!!

District: 4 DCA, Division: 3,
Opinion date: 5/23/11, DAR#: 7391

Case facts summary:

The Governor's decision reversing a Board decision for release on parole must be supported by evidence in the record, but it is not supported by finding fault with the extent of examination done by a mental health evaluator in reaching the conclusion that the inmate had insight into his offense.

In 1990, petitioner in the underlying matter, Hank Nguyen, murdered his former girlfriend, Tina Tham, who had broken off their relationship eight months earlier. On June 28, 1991, after the jury convicted Nguyen of murder, the court sentenced him to 15 years to life in state prison.

Nguyen entered prison with no prior juvenile or adult criminal record, except the current offense for which he has accepted full responsibility and expressed sincere remorse. In prison, he successfully completed a panoply of courses to strengthen his mind and skills and increase his self-insight. He was discipline free during his entire incarceration, and kept himself busy working as a plumber and providing math tutoring to other inmates. The Board found Nguyen‟s institutional behavior “remarkable” and commented it could not “have asked for any more compliance or improvement.” Apparently brushing aside Nguyen‟s accomplishments, the Governor found fault with a mental health evaluator for not exploring more about the cause of defendant‟s behavior.

Decision summary The Board of Parole Hearings (the Board) found Nguyen suitable for parole in June 2009. The Governor reversed the Board‟s decision, finding the crime “extraordinar[ily] callous, heinous and atrocious,”. The Board also found that Nguyen had not fully accepted responsibility for the murder or developed a sense of genuine remorse.

The judgment of the trial court granting habeas relief is affirmed where the absence of a psychological evaluation does not amount to some evidence that petitioner currently poses an unreasonable threat to the public if released from prison.

In re Vicks 5/11/2011 - Marsy's Law Violates Ex Post Facto Principle - Big Win for Lifers!

In re Vicks (2011) , Cal.App.4th
[No. D056998. Fourth Dist., Div. One. May 11, 2011.]

Click here for the latest on In re Vicks  (Prop. 9 Marcy's Law challenge)

OPINION
McDONALD, J.-
In 1983, Michael Vicks was convicted of two counts of rape in concert, two counts of forcible oral copulation in concert, three counts of kidnapping, one count of kidnapping to commit robbery, and multiple counts of robbery; many of these convictions included true findings on appended firearm enhancements. Vicks was sentenced to a total term of 37 years 8 months to life. Vicks, now 51 years old, has been incarcerated for more than 28 years.
At Vicks's first parole hearing, the Board of Parole Hearings (BPH) found him unsuitable for parole. The BPH found the commitment offense was particularly egregious under many indices and, considering numerous other factors (including Vicks's prior criminal record, his disciplinary record while incarcerated, his failure to gain insight into the commitment offense, and his psychological evaluation), concluded Vicks was not currently suitable for parole. The BPH further concluded a five-year denial of parole was appropriate under the circumstances.
Vicks petitioned the trial court for a writ of habeas corpus, but the court denied the writ, concluding the BPH's decision was supported by some evidence. Vicks then petitioned this court for a writ of habeas corpus. We issued an order to show cause, the People filed a return, and Vicks filed a traverse.
Vicks asserts the BPH's decision to deny parole violated due process because its conclusion that he posed an unreasonable risk of danger to society if released on parole was contrary to the only reliable evidence that he was not currently dangerous. He also asserts the imposition of a five-year deferral, pursuant to the amendments to Penal Code section 3041.5, subdivision (b), adopted after the voters approved Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law" (hereafter Marsy's Law), cannot be applied to him without violating ex post facto principles.
We conclude the BPH's decision to deny parole was supported by some evidence, pursuant to the guidance provided by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241.

We also conclude application of the amendments to Penal Code section 3041.5, subdivision (b), to inmates whose commitment offense was committed prior to the effective date of Marsy's Law violates ex post facto principles.

In re Jackson: Big win for Lifers via Penal Code 5011: no need to admit

Here's a bombshell, out of the COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION THREE. Great win!

3/30/2011 - Certified for Publication
Case: B228409, (Los Angeles County
Super. Ct. No. A624068

ISSUE: Why the Board of Parole Hearings‘ decision to deny petitioner parole did not violate Penal Code section 5011, subdivision (b), and California Code of Regulations, title 15, section 2236, by relying, either directly or indirectly, on petitioner‘s refusal to admit guilt!

BACKGROUND: The present case is analogous to Palermo and McDonald. The Board did not directly state that Jackson was unsuitable for parole due to his refusal to admit he was 16
guilty of the commitment offense—indeed, the Board stressed that Jackson was not required to admit guilt. Instead, the Board denied Jackson parole based on its findings that Jackson lacked insight into the crime, failed to take responsibility for it, and did not have remorse. But the only evidence to support these findings was Jackson‘s refusal to admit he shot and killed Sharon Wade!

CONCLUSION: Because the only basis for the Board to conclude Jackson lacked insight, failed to take responsibility, and lacked remorse was his refusal to admit guilt for the commitment offense, the Board indirectly relied on that refusal to deny Jackson parole.

By doing so, the Board violated section 5011, subdivision (b) and California Code of Regulations, title 15, section 2236. It is also important to recognize that like Palermo and McDonald, this is not a case where the inmate‘s version of the crime was physically impossible or strained credulity. While there was certainly substantial evidence to support the trial court‘s finding that Jackson murdered Wade, Jackson‘s denial of that allegation is not necessarily inconsistent with the evidence.

Further, like the inmates in Palermo and McDonald, Jackson accepted responsibility for the death of his victim, behaved well in prison, successfully engaged in self-improvement activity while there, and received positive reports regarding his potential dangerousness by prison psychologists.

Under these circumstances, Jackson‘s continuing insistence that he did not shoot and kill Wade does not support the Board‘s finding that he remains a danger to public safety.

In re Loveless : win some, lose some: Looser for Lifers

The Court of Appeal vacated the trial court order, finding there was "some evidence" supporting the board's decision.

Case Name: In re Loveless , District: 3 DCA , Case #: C062354
Opinion Date: 1/7/2011 , DAR #: 1739

Case Holding:

The standard of review for reviewing a parole decision is whether there is some evidence that an inmate poses a current risk to public safety, not merely whether there is some evidence to support the findings on the suitability or unsuitability factors.

Loveless was convicted of second degree murder based on the killing of a homeowner in front of his teenage son during the course of a home invasion robbery. At the time of the crime he was unemployed and an alcoholic. When Loveless came up for a parole hearing 22 years later, the board denied parole because the crime was "especially callous" and because he lacked insight and remorse, and had inadequate post-release plans.

The trial court reversed the denial of parole, and the warden appealed. The Court of Appeal vacated the trial court order, finding there was "some evidence" supporting the board's decision.

The evidence supports the board's findings regarding unsuitability factors, and there is a rational nexus between these findings and current dangerousness. Loveless did not adequately address post-release job prospects and stopped participating in AA, when unemployment and alcoholism were contributing factors to the crime.

Swarthout v. Cooke 1/24/11: No federal habeas relief for errors of state law

A major disappointing case by the US Supreme Court for Lifers!

The federal review will only be available if the Inmate is not allowed an opportunity to be heard and provided a reasons why his parole was denied.

All defense attorney should now make a point of making a "record" at the Parole hearing when the inmates are "cut-off" by the Commissioners and not given the proper opportunity to speak!!!


Case Name: Swarthout v. Cooke & Cate v. Clay ,
District: USSup , Case #: 10-333
Opinion Date: 1/24/2011 , DAR #:1230


Case Holding:

In the context of California's parole statute, there is no federal habeas relief for errors of state law, and the federal review available is limited to whether the applicant was allowed an opportunity to be heard and advised of the reasons why parole was denied.

Cooke, convicted of attempted first-degree murder, was denied parole by the Board of Prison Terms, which found that he was not suitable because of the nature of the offense, his prison adjustment, failure to participate in rehabilitative programs, and failure to develop marketable skills. Clay was found suitable by the board but the Governor reversed the finding.

The Ninth Circuit granted relief, finding that the parole statute created a liberty interest protected by the due process clause and, in Cooke's case, the state made an unreasonable determination. The Ninth Circuit found that in Clay's case, the Governor's decision was an unreasonable application of the "some evidence rule."

The U.S. Supreme Court reversed, holding that federal habeas corpus relief does not lie for errors of state law. Further, the liberty interest in parole is a state interest created by California law. There is no right under the federal Constitution to be conditionally released before expiration of sentence, and the states are under no duty to offer parole. If a state does offer parole, thereby creating a state liberty interest, the due process clause requires fair procedures for its implementation.

These State procedures are minimal, however, requiring only that the applicant has an opportunity to be heard and is advised of the reasons for parole denial. (Greenholtz v. Inmates of Neb. Penal and Correctional Complex (1979) 442 U.S. 1.) Here, both Cooke and Clay were offered the opportunity to speak at the parole hearing and were advised of the denial.


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McCullough v. Kane 12/27/10 - District: 9 Cir. Inmate may obtain federal habeas review

After being found suitable twice by the BOARD and reversed twice by the Governor...a Federal Petition is filed for relief.

Feds agree that they can review if there is an abuse of the CA "some evidence" standard!
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Case Name: McCullough v. Kane , District: 9 Cir , Case #: 07-16049
Opinion Date: 12/27/2010 , DAR #: 19318


Case Holding:

Under California's current parole laws, applicants for parole may obtain federal habeas review of whether there is "some evidence" supporting a negative parole decision. At a young age, McCullough was convicted of murder and sentenced to prison for life. Despite a less than positive initial prison adjustment, within a period of time, he performed admirably, obtaining a bachelor's degree in social work, helping with other prisoners, being psychologically evaluated as less likely to commit violence than the average community citizen, etc.

Twice the board recommended him for parole, and twice the Governor reversed, with the most recent reversal based on a finding that McCullough would pose an unreasonable risk of danger if released.

McCullough unsuccessfully pursued remedy through the state courts and filed the instant petition for writ of habeas corpus in the district court.

The court granted the petition and the state appealed. California parole law creates a cognizable interest in release on parole protected by due process, and a denial can be justified only with some evidence of dangerousness. Here, based on the record, the denial was an unreasonable application of decisions defining the scope of the state-created liberty in parole, such that the federal court, had jurisdiction to review under AEDPA.

Finding that the Governor's action in reversing violated McCullough's due process and statutory rights, the appellate court upheld the district court's decision granting the habeas corpus petition.