Monday, December 19, 2011

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.)

Friday, December 2, 2011

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

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.

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.

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.