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.)

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