In re Charles Riley (12/3/15): Court overrules Governor's reversal of Board's parole grant

In re Charles Riley (12/3/15)  (Marin County Super. Ct. No. SC181491A) A145041
In the Court of Appeal of State of Ca. 1st Appellate District, Division 2

This case just came down in December, overruling the Governor's reversal of the Board's parole grant for Charles Riley down since 1976.  The decision was issued one day after oral argument (Yes!), and is effective immediately. 

LEGAL BEE corner:
Unfortunately the case is Not published (thus, can not be cited), but it is still good reading (See Justice Kline, of the 1st DCA).  Michael Satris (Prison Law extraordinaire Attorney) was the Appointed Counsel.  Basis of the decision? SURPRISE SURPRISE --->  No evidence supporting the Governor's conclusion.

FACTS SUMMARY: 
Charles Riley, a life prisoner, appeals from the Governor’s reversal of the decision the Board of Parole Hearing (Board) granting him a parole date. Riley was in 1976 convicted of first degree murder of the parents of his then girlfriend, Marlene Olive. He was originally sentenced to death, but while his case was on appeal, the California Supreme Court declared the statutory death penalty scheme unconstitutional (Rockwell v. Superior Court (1976) 18 Cal.3d 420) and the Court of Appeal modified petitioner’s sentence to 25 years to life on each count, said terms to run concurrently. Riley’s minimum eligible parole date was set at seven years, June 27, 1982. He has now been incarcerated for more than 40 years.

ISSUES:
Riley claims the Governor’s reversal of the Board’s grant of parole in 2014 is not supported by any evidence and an abuse of discretion. A sub-issue was that the Board’s increase of the interval for parole consideration after a Governor’s reversal from 12 months [after the last Board hearing] to 18 months was an Arbitrary infringement of Riley’s right to an annual parole consideration (because he was sentenced under the Indeterminate Sentence Law) that violated his federal and state constitutional rights to due process and to be free of ex post facto punishment.


HOLDING:
MAIN ISSUE: The Court agreed and vacated the Governor's reversal. vacate the Governor’s decision, grant Riley’s petition for writ of habeas corpus, and direct the Board to release Riley pursuant to the conditions set forth in its decision of September 19, 2014, granting him parole and setting a release date.

DISPOSITION:
The Governor’s decision reversing the Board decision granting Riley parole is
vacated. Riley’s petition for habeas corpus is granted. The Board’s grant of parole is
reinstated and the Board is directed to conduct its usual proceedings for release on parole.
(In re Lira (2014) 58 Cal.4th 573, 582.)

Considering that, according to the Board, Riley’s adjusted base term (24 years), increased by aggravating factors and enhancements11 and reduced by his total postconviction and pre-prison credits (12 years and 7 months), entitled him to a July 1, 1987, “release date,” which was more than 28 years ago, this opinion shall in the interests of justice be final as to this court immediately. (Cal. Rules of Court, rule 8.387(b)(3)(A).)

In re Swanigan 9/1/2015: BPH erred by Denying Parole on a non-admission of crime

Case Name: In re Swanigan , District: 2 DCA , Division: 1 , Case #: B261904
Opinion Date: 9/1/2015 , DAR #: 10193

Great appellate Attorney Rich Pfeiffer pulled this one out for the Lifers!
Rich was under appointment by the Court of Appeal, for Petitioner.

CASE FACTS:
In 1981, a jury convicted Swanigan, then 20 years old, of first degree murder. The jury found that he personally shot Ronald Como on September 10, 1980. The trial court sentenced him to 27 years to life in prison. Except for an admission made at his eleventh (11th) Parole Hearing in 2014 and quickly withdrawn, Swanigan has continuously and consistently maintained that he did not shoot Como.


CASE HOLDING:
Board of Parole Hearings (BPH) erred by denying parole to otherwise suitable defendant because he would not admit guilt. In 1981 defendant was convicted of first degree murder after he was identified as the person who shot the owner of a car repair shop. During 10 parole hearings defendant maintained his innocence. At the eleventh, he briefly admitted the killing but shortly thereafter recanted following a recess during which his attorney told him to tell the truth. Defendant's in-prison conduct was discipline free for a lengthy period and his prior misconduct did not involve violence. His psychological report reflected a low risk of violence and he had parole plans.

The BPH denied parole because defendant lacked insight into his offense and lied briefly to them during the hearing. After the superior court denied his writ petition, Swanigan petitioned in the Court of Appeal. Held: Habeas petition granted. When assessing whether a life prisoner poses an unreasonable risk of danger if paroled, BPH must consider all relevant, reliable information, including the failure to gain insight into the life crime.

However, BPH may not require an admission of guilt to set a parole date (Pen. Code, § 5011; Cal. Code Regs., tit. 15, § 2236). Here, the information in defendant's post conviction record supports a finding that he is rehabilitated and no longer poses a danger to society. The BPH did not articulate a rational nexus between the facts of the commitment offense and current dangerousness, relying instead on defendant's refusal to admit guilt to conclude he lack sufficient insight or remorse. This was error. Even applying a highly deferential standard, i.e., whether "some evidence" supports BPH's denial of parole, there is no evidence in the record that defendant poses a risk of danger if released.


DISPOSITION
The petition for a writ of habeas corpus is granted and the decision of the Board of Parole Hearings is vacated. The Board is directed to conduct a new parole suitability hearing consistent with due process of law and with this decision. (In re Prather (2010) 50 Cal.4th 238, 244.)

SB261 / SB519 passed (crime when under 23 yrs of age) Approved by Governor October 03, 2015.

Just a quick NOTE on SB261:  It will be effective January 2016.
Companion SB519, basically extends BPH deadlines by 6 months.

NOTE:  SB519 means, ISL   must have their YOPH   before Dec 31, 2017.
             SB519 means, DSL must have their YOPH   before Dec 31, 2021.
NOTE2: Be aware Senate Bill 260/261 does not apply to LWOP inmates. 



The long awaited Senate Bill 261 was signed by the Governor. It will be effective January 2016. BPH (Board) is gearing up to start these YOPH as of January 2016. This would expand the YOPH to those inmates who committed their crime before 23 yrs of age.

What does that mean to my loved one who is scheduled to go to his Parole Hearing this year (2015), but would qualify under SB261 (in 2016)?

An Inmate can go forward with the 2015 Parole Hearing or opt to Postpone his hearing for 2016. Each SB261 potential case must be looked at individually (case-by-case). The Base TERM (of incarceration) calculation is different if a parole hearing is held under the YOPH vs the regular Parole Hearing law. This is just one (1) of many factors to consider in making a choice. NOTE: BPH is only allowing a 1-year Waiver, not a postponement.

It would be wise to contact an attorney with Youth Offender Parole Hearing experience or Attorney Diane Letarte via email (Office: 619-233-3688.)

CASE and POINT example: 
There are advantages and disadvantages in each case, these factors need to be analyzed. Attorney Diane Letarte just received a GRANT of Parole for her client yesterday on 10/8/2015 at Soledad prison. The first question (at the Parole hearing) from the Commissioner was does your client want to postpone, since he qualifies under SB261, effective January 2016. After a private discussion with my client we opted to go forward without taking advantage of the SB261 law. He was 19 years old at the time of the crime. 

EVERY CASE IS DIFFERENT and must be analyzed individually to see whether postponing the hearing is the correct strategy.

As stated above: This SB261 is a little different then the SB260 in that the Indeterminate sentenced inmates (ISL) will be brought to a YOPH hearing starting January 2016 and before July 1, 2017. The DSL portion of the SB261 will be effective starting July 1, 2021.

The Determinate Sentenced inmates (DSL) will be given a Consultation hearing by a Commissioner or Deputy Commissioner (DC) to review their Central file and let the inmate know what they should be working on to prepare for their upcoming Youth Offender Parole Hearing (YOPH). The DSL inmates scheduling will basicly be lagging by 5 years before they get their YOPH. The effective date of the bill being July 1, 2021 for the DSL inmates. This delay was mostly enforced because of the SB260 Statistics accumulated during the YOPH under SB260 (2014-2015). Most DSL inmates were not properly prepared for their Parole Hearing (YOPH), thus very few received a grant of Suitability and many resources were exhausted and inmates were frustrated by the high rate of Denial of parole.


REMINDER:
This bill is an expansion of Senator Hancock's bill from 2013, SB 260, which allowed parole hearings for those persons who committed a crime and sentenced to state prison prior to being 18 years old.

For a complete update and tracking - see: http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml?bill_id=201520160SB261

SB261 (youth under 23 yrs old) YOPH Bill passes Assembly Floor

*** A short time ago, SB 261 passed the Assembly floor receiving 42 votes. The bill now heads to the Governor's office for final consideration.

Senate Bill 261, authored by Senator Hancock (D-Berkeley), which requires the Board of Parole Hearings to conduct parole hearings for those sentenced to state prison for certain crimes when they were under the age of 23. This Expands the current YOUTH PAROLE HEARING (SB260) Bill that previously passes in 2014 for those who committed their crime while under the age of 18 to  under the age of 23. 

This bill is an expansion of Senator Hancock's bill from 2013, SB 260, which allowed parole hearings for those persons who committed a crime and sentenced to state prison prior to being 18 years old.

For a complete update and tracking - see: http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml?bill_id=201520160SB261

We need to see of Governor Brown will signed off on it...... STAY tune! Most likely will be effective in January 2016.

*** credit for this information goes to CRIMINAL JUSTICE INFORMATION NETWORK at-->

http://us1.campaign-archive2.com/?u=2146e9cc6b109029511d049fb&id=5b5a64d204&e=49eb3f1c25

**UPDATE SB 224, (Elderly Parole Hearing) - withdrawn - potential 3 Strikes Law conflicts

Sen. Carol Liu (Democrat), author of Senate Bill 224 (SB224), (Elderly Parole Hearing) that would codify and possibly expand considerations of elderly parole, has withdrawn the Bill from consideration for this session. Liu’s office and Bill supporters indicate discussions on possible changes to the Bill with an eye to reintroduction of the legislation will begin in January 2016.

Summary of original SB224:
The original draft of the Senate Bill required the Board of Parole Hearings  (BPH) to conduct a ELDERLY PAROLE HEARING for offenders sentence to State prison who have reached 50 years of age and have been incarcerated 15 years or more. NOTE: This would have been an expansion from the existing BPH regulation that was established in October 2014 to allow 60 yrs old inmates who have been incarcerated 25 years or more to go to a Elderly Parole Hearing.

Update***:   

SB 224 has been withdrawn from consideration for this session. Assessment by the Legislative Analyst’s Office  classified SB 224 in the category of Bills that would require a 2/3 majority vote on the legislative floor, a threshold Sen. Liu’s office felt could not be met. That concern lead to the bill being withdrawn from consideration for this session.

Prior to the inactivation of SB 224 the bill had been amended from its original framework that would have applied the considerations of elderly parole to those prisoners aged 50 years and over who had served 15 years to a higher standard, affecting the current qualified inmates 60 years and over who had served 25 years or more. The number of prisoners potentially impacted by the original age and time factors proposed (50/15) would have numbered about 6,000.


In 2014 the BPH scheduled over 4,000 hearings, so it also became apparent that such an influx of new hearings would have had a significant impact on the BPH’s already full parole hearing schedule. Ripples from the increased hearing numbers would also have had a significant impact on the availability of attorneys, hearing rooms, CRA evaluations and other requirements of hearings.

Reassessment of the Bill’s language will seek to navigate SB 224 away from conflict with the provisions of 3 Strikes, would then remove the need for a 2/3 majority floor vote for passage.

*** NOTE:  This SB224 update provided by Venessa at LSA   LIFE SUPPORT ALLIANCE

NEW ANNOUNCEMENT ---- UPCOMING LIFER PICNIC - join LSA as they HOST the reunion

• What:      LIFER PICNIC      (hosted by: LSA at 916-743-1654)
    
  • When:     Saturday, September 19 from 11:30 AM to 4:00 PM

• Where:   North Laguna Creek Park 6400 Jacinto Avenue Sacramento, CA 95823

===============================================================

If you want to retain an Attorney with ELDERLY Parole Hearing experience (attorney Letarte over 50 years old herself and has empathy for her clients)  please contact ATTORNEY DIANE LETARTE via her website or     email at Attorney Letarte's office. 

GIlman v. Brown (Prop9) Marsy's Law: 9th Cir. Oral Argument - wait and see

UPDATE***** SEE OUR NEW 2/22/16 GILMAN  POSTING BLOG ( February 2016)

California Governor Brown appeals from the district court's bench trial judgment in an action brought by LIFE inmates challenging, on ex post facto grounds, Propositions 89 and 9, pertaining to the State's parole system.

==========================
As a reminder below are the two Propositions (P9, P89) being challenged: 

(NOTE back in 2008 it passed by 54% = Y,  46%= N)

On November 4, 2008, the People of the State of California approved Proposition 9, the Victims' Bill of Rights Act of 2008: Marsy's Law. This measure amended the California Constitution to provide additional rights to victims and increased all the Lifer Parole Hearing denial lengths from the range of 1 to 5 year to a minimum of 3 year to 15 year denial.   

(NOTE back in 1988 it passed by 55% = Y,  45%= N)

On  November 8, 1988 the People of the State of  approved California Proposition 89.
Proposition 89 gave to the Governor of California the authority to approve, modify, or Reverse any decision by the Parole authority (Board of Parole Hearings  or Youthful Offender Parole Board) regarding the parole of persons who are sentenced to an indeterminate term (ISL) for committing murder.

===========================
See Attorney Monica Knox's great Oral argument in the (9th Circuit Court on Gilman v. Brown  (Prop9, Prop 89). She challenges the application of Marsy's Law to all the LIFERS that were sentence prior to the 2008 enacted Marsy's Law. She argues for a class of approximately 10,000 Lifer (ISL) inmates.
GO MONICA GO.

**** We will have to wait for the 9th Circuit 's Decision of the June 15, 2015  Oral argument.

WE ARE LL HOPING THAT THE 9TH CIRCUIT AFFIRMS THE DISTRICT COURT'S DECISION and finds that Marsy's Law is unconstitutional because it violates the Ex Post Facto principle.

In Re Vicks found Suitable after denying the crime for 30+ years!

IN RE VICKS  195 Cal.App.4th 475 (2011)   ( Prior case)
In re MICHAEL VICKS on Habeas Corpus.  No. D056998.
Court of Appeals of California, Fourth District, Division One.  May 11, 2011.

Michael Vicks is finally FOUND SUITABLE  after denying the crime for over 30 years. Mr. Vicks was denied parole at his Initial hearing with a 5-year denial, he was again denied parole for 3 year at his subsequent parole hearing. He kept getting denied becasue according to the Commissioners he had no insight and was mitigating the crime. In reality, Mr. Vicks has stayed true to his story for 32 years, that he and his co-defendant did NOT commit the rapes and robberies.  

At Mr. Vicks subsequent Parole hearing #2 (3rd BPH appearance), Mr. Vicks hired ATTORNEY DIANE LETARTE  and the rest is history. Attorney Letarte went out of her way to see the crime scene (yes, 32 years later). She took photos of the Ravine in San Diego where the purses of the rape Victims were discovered by Mr. Vicks (in 1983) and his Co-defendant, Mr. Cody. The location near I-94 was still as it was 32 year ago, except for a few grown trees - as describes by Mr. Vicks! The photos were used as a visual aid along with other evidence showing that Mr. Vick's story was NOT IMPLAUSIBLE (standard set by In Re Shaputis II for the PC 5011 denial of crime) and that  the only extent of Mr. Vicks' involvement in those crimes were to unfortunately find the two (2) stolen purses of the rape victims in a Ravine, on his way to a cousin's home.


Background Summary: 
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 On April1, 1983 and April 13, 1983 near Mission Valley. Vicks was sentenced to a total term of 37+ years to LIFE. Vicks, now 55 years old, has been incarcerated for more than 30 years.

At Vicks's first parole hearing, the Board of Parole Hearings (BPH) found him unsuitable for parole.  The BPH further concluded a five-year (5) 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 the Appellate court for a writ of habeas corpus. As we may recall back in the In re Vick case in 2011 --->

In 2011, Vicks asserts the BPH's decision to deny parole violated due process in 2 ways:

1) 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. (2015 UPDATE:  as of 2014, Vicks was still unsuitable, until he retained Attorney Letarte and on June 3, 2015 was found Suitable by BPH.)

2) He also asserted the imposition of a five-year (Marsy’s Law. Prop 9) cannot be applied to him without violating ex post facto principles. The Court back in 2011 concluded that the application of (Prop 9)  Marsy's Law violates ex post facto principles.  (2015 UPDATE:  Subsequent to this Court of Appeal 2011 decision. The CA Supreme Court stated that Prop 9 was not unconstitutional on its Face because inmates had the option file file a Petition to Advance their hearing.

STAY TUNE:  Federal Court under the Gilman  v. Brown case, Prop 89 (1988 Governor Veto power) is still in litigation with Oral argument in San Francisco. The Gilman case, of continuing interest to all LIFERS whose crime predated Nov. 8, 1988 and who's BPH grants of Parole were reversed by the Veto power of the Governor, is set for Oral argument June 17, 2015.

SB224 Expanded Elderly Parole HEARING around the corner: SB224 (50yrs old and Down 15 years or more)

Sen. Carol Liu (Democrat), author of SB 224, (Elderly Parole Hearing) bill enacted last year, recently introduced a follow-up to BPH's (Oct 2014 Elderly Program), called Senate Bill 224 (SB224). The Bill has not passed as to the writing of this BLOG, it was In SENATE Committee on APPROPRIATIONS  on April 20, 2015.

 
Summary:
Requires the Board of Parole Hearings  (BPH) to conduct a ELDERLY PAROLE HEARING for offenders sentence to State prison who have reached their Golden Years of 50 years of age (or more) and have been incarcerated 15 years or more. NOTE: This is a great expansion from the older BPH regulation that was established in October 2014 to allow 60 yrs old who had over 25 years of incarceration.


Under the language of SB 224, the new bill will consider ‘hallmarks of Elderly’ (kinda). The Elderly Parole Program will require the Board of Parole Hearings (BPH) to consider whether age, time served, and diminished physical condition, if any, have reduced the prisoner's risk for future violence.  If you want to retain an Attorney with ELDERLY experience (attorney Letarte over 50 years old herself and has empathy for her clients)  please contact ATTORNEY DIANE LETARTE via her website or
email at Attorney Letarte's office. 

Status:

02/13/2015 INTRODUCED.
02/26/2015 To SENATE Committee on PUBLIC SAFETY.
03/19/2015 From SENATE Committee on PUBLIC SAFETY with author's amendments.
03/19/2015 In SENATE. Read 2nd time & amended. Re-referred to Committee on PUBLIC SAFETY.
04/07/2015 From SENATE Committee on PUBLIC SAFETY: Do pass to Committee on APPROPRIATIONS.
04/20/2015 In SENATE Committee on APPROPRIATIONS: To Suspense File.

Bill Text
03/19/2015 - SB 224 (Amended)
02/13/2015 - SB 224 (Introduced)



To get an update please contact:   Sen. Carol Liu  (Democrat- click for email) - 
State Senate  (click on  Sen. website)

Capital Address:
California State Capitol
Room 5097
Sacramento, CA 95814-4900
Phone: (916) 651-4025

District Address:
1000 N. Central Avenue
Suite 240
Glendale, CA 91202
Phone: (818) 409-0400
Fax: (818) 409-1256

SB261 YOUTH HEARING expansion Potential: SB260 / SB261 (18 to 23 at the time of the crime)

Sen. Loni Hancock (D-Petaluma), author of SB 260, (Youth Offender Parole Hearing) bill enacted last year, recently introduced the follow-up to that legislation, called Senate Bill 261 (SB261). The Bill has not passed as to the writing of this BLOG, it was last amended this month on April 7, 2015.

Summary:
Requires the Board of Parole Hearings  (BPH) to conduct a YOUTH OFFENDER PAROLE HEARING (YOPH) for offenders sentence to State prison who committed specified crimes when they were under 23 years of age. DEADLINE: Requires the Board to complete all youth offender hearings for individuals who became entitled to have their parole suitability considered at a youth offender parole hearing on the effective date of this legislation. If passed --> parole hearings for those newly eligible for YOPH consideration, would be those who were between the ages of 18 and 23 at the time of the crime. The Deadline would be that a YOPH  be held prior to July 1, 2017.

Under the language of SB 261, the new YOPH bill, consideration of the ‘hallmarks of youth’ would be extended to those who were under 23 years of age at the time of their crime. If you want to retain an Attorney with YOPH experience please contact ATTORNEY DIANE LETARTE via her website or
email at Attorney Letarte's office.


Bill Status:
02/18/2015 INTRODUCED.
02/26/2015 To SENATE Committee on RULES.
03/24/2015 From SENATE Committee on RULES with author's amendments.
03/24/2015 In SENATE. Read second time and amended. Re-referred to Committee on RULES.
04/07/2015 Re-referred to SENATE Committee on PUBLIC SAFETY.


Senate Bill Text (click on link)
03/24/2015 - SB 261 (Amended)
02/18/2015 - SB 261 (Introduced)


To get an update please contact:  Sen. Loni Hancock
(Democrat) - State Senate  (click on  Sen. website)

Capital Address:
California State Capitol
Room 2082
Sacramento, CA 95814-4900
Phone: (916) 651-4009

District Address:
1515 Clay Street
Suite 2202
Oakland, CA 94612
Phone: (510) 286-1333
Fax: (510) 286-3885

In re Wilson (1/22/2015) trial court must use Miller v. Alabama, (Youth factors) before imposing LWOP sentence

Case Name: In re Wilson , District: 2 DCA , Division: 7 , Case #: B254093
Opinion Date: 1/22/2015 , DAR #: 907

NOTE by Blog author (Attorney Diane Letarte): A Trial Court must consider the Hallmarks of Youth at sentence when the Defendant is under 18 years of age when s/he committed the offense. The new (2015)  In re Wilson case, just emphasizes the fact that when an inmate (or defendant) is/was under the age of 18 years the day of the crime the Sentencing Judge MUST take the mitigating circumstances of his youth and background, when imposing Life Without Possibility of Parole (LWOP) sentences. This new case coupled with Senate Bill 9 (SB9- see our previous BLOG) gives hope to many inmates that were incarcerated and sentence to an LWOP. A Writ of Habeas Corpus (WHC) can be filed on a dual track 1) Petition under the SB9 and a 2) Petition under Miller v. Alabama to recall the LWOP sentence. 

 

Below is a REPRINT of the In re Wilson Summary:
by the Courtesy of the CCAP(Central California Appellate Program)

CASE HOLDING:
Habeas petitioner is entitled to relief because trial court did not adequately consider the distinctive mitigating circumstances of his youth and background, as required by Miller v. Alabama, when imposing juvenile LWOP sentence. In 1995, when he was 17 years old, Wilson participated in a bank robbery that resulted in the death of a bank employee. Following a jury trial, he was convicted of felony murder and related offenses, and was sentenced to LWOP. The appellate court affirmed his conviction on direct appeal. In 2013, Wilson petitioned for habeas relief, arguing that his sentence violates the Eighth Amendment in light of the U.S. Supreme Court's decision in Miller v. Alabama (2012) 132 S.Ct. 2455. The trial court denied the petition. Wilson next sought habeas relief in the Court of Appeal. Held: Petition granted. In Miller, the U.S. Supreme Court held that the Eighth Amendment forbids mandatory LWOP sentences for individuals who were juveniles at the time they committed a homicide. The Court outlined a number of individual sentencing factors (the Miller factors) that the sentencing court must consider before imposing an LWOP sentence. Based on the record in this case, the trial court did not presumptively impose Wilson's LWOP sentence. (See Pen. Code, § 190.5, subd. (b); People v. Gutierrez (2014) 58 Cal.4th 1354.) However, the trial court did not adequately consider the Miller factors. The court rejected the Attorney General's argument that habeas relief should be denied because Wilson has the possibility of parole under Penal Code section 1170, subdivision (d)(2). Relying in part on Gutierrez, the court concluded that this statute falls short of what Miller requires, even where the trial court did not apply a presumption in favor of LWOP.

The rules announced in Miller apply retroactively to cases that were final prior to the decision. Wilson's LWOP sentence was imposed and the judgment in his case became final 15 years before Miller was decided. Although new rules are not generally applied retroactively in cases on collateral review, there is an exception when the rule is substantive. (Teague v. Lane (1989) 489 U.S. 288; Schriro v. Summerlin (2004) 542 U.S. 348.) After reviewing decisions from other states and federal courts, the appellate court here concluded that Miller applies retroactively. Miller held that a sentencing court must consider specific, individualized factors before imposing an LWOP sentence and recognized that LWOP sentences should be rare when mitigating evidence is considered. This is a new substantive rule that addresses the limits on the imposition of a juvenile LWOP sentence. Additionally, the U.S. Supreme Court has already applied the rule to a petitioner who was before the Court on collateral review in Miller. Wilson is entitled to the benefit of Miller because of the unfairness that would result if Miller did not apply. [Editor's Note: A Miller retroactivity issue is currently pending in the California Supreme Court: Does Miller apply retroactively on habeas corpus to a prisoner who was a juvenile at the time of the commitment offense and who is presently serving a sentence that is the functional equivalent of life without the possibility of parole? (In re Alatriste (2013) 220 Cal.App.4th 1232, review granted 2/19/2014 (S214652/B248072); In re Bonilla (2013) 220 Cal.App.4th 1232, review granted 2/19/2014 (S214960/B248199).)]


Thanks again  to CCAP for their Case Summary.

2014 Youth and Elder Parole Hearings - Grants vs Denials and non-lifers (DSL)

HAPPY NEW 2015 YEAR..... hoping it will be as productive and transparent as the  2014 year  for LIFERS, other inmates and the criminal defense Attorneys, who work hard to fight for their freedom..
(BELOW: just  a quick STATS note for this February post)

2014 was a great year for the Board of Parole Hearings (BPH), with the implementation of both the Youth Offender Parole Hearings (YOPH) and the Elderly Parole  hearings, the expansion of medical parole, plus the addition of various non-lifer inmate populations getting a shot at early release via the Board ( BPH).

Many procedural changes have changed because of the mandates from the Federal Court. Thus,  some changes were strictly legal - case law, implemented of new legislation - while others were just pressure from previous Realignment done at the State Level.

Wherever the changes came from - the bottom line is that is it reflected in the number of Grants and Denials.

The Numbers (Statistics) are from the LSA Newsletter ---> (thank you again for a job well done at the BPH headquarter)

YOPH (via SB 260):

Jan-Nov 2014:     394   hearings were scheduled,
                            resulting in 112 grants,
                            146 denials, and 2 split decisions.
Of course waivers, cancellations, Stipulations account for the 396 scheduled hearings. The cases heard gave 112 Grants, a net grant rate of 43%.

ELDERLY/MEDICAL:   (note: elderly actually started in October 2014)

Parole consideration began in February and by the end of November 514 hearings had been scheduled, with 115 grants, 245 denials, and 2 split decisions.Hearings which started in October, 2014, saw 21 hearings slated, resulting in 9 grants, 8 denials, 1 continuance and 3 cancellations. 

Non-Lifers / DSL (Determinate Sentence)

Attorney Letarte has started to represent the DSL inmate population with their Board of Parole Hearings. Good news and Bad news for these inmates.  GOOD NEWS; They have a chance at an EARLY Release before the actual  (Eligible Earliest Parole Release Date): BAD NEWS: They have to compete with Lifers' Presentation at the BOARD hearing. Most Lifers (vs DSL inmates) have years of  "clean time", tons of Programming and Vocational trades.  Unfortunately, the DSL will be judge by the same standard to be an UNREASONABLE THREAT to SOCIETY if released. DSL will be subject to the same Marsy's Law denial length. GOOD NEWS: Regardless of the denial length (if not granted parole) the DSL inmate's release date will be Honored and thus released, UNLESS there are new criminal charges. For example, if DSL inmates have 3 more years before reaching their release date ( EPRD) and they get a 5 years denial, they will most likely NOT see the Board again..and will be released at their 3 year mark.

******************************************************************************
2015 is a new exciting years for Lifers (ISL) and the DSL inmate population..
.lets keep fighting for those GRANTs.

PAROLE PROCESS for NON-VIOLENT, NON-SEX-registrant, Second Striker

Although this posting does not relate specifically to Lifers...it has a great impact on how the Board of Parole Hearings (BPH) will need to streamline their resource to get all the appropriate inmate release to follow the Federal Court Order described below. It is also an opportunity for non-lifers to be Reviewed by the Board by presenting written evidence. (see below)

=============
On February 10, 2014, the Three Judge Panel in the Plata/Coleman class action lawsuit Ordered the California Department of Corrections and Rehabilitation (CDCR) to implement a process whereby Non-Violent, Second-Strikers will be eligible for Parole Consideration by the Board of Parole Hearings (Board) once the inmate served 50% of their sentence!

There will be NO hearing per se, for these qualified candidate inmates, but they will be allowed to present evidence. Inmates will have 30 days from the date of the referral (to Board) to submit a written statement. Opposing parties (such as the District Attorneys, Victims, etc) will also have a chance to draft a written statement that they wish the Board to consider within 30 days. A Deputy Commissioner will conduct the Administrative Review to determine if the inmate's release would pose "an unreasonable risk" to public Safety.

IT IS IMPORTANT that the inmate take advantage of this chance to provide RELEVANT written evidence to the BOARD for their consideration. It is best to CONSULT with an experienced Attorney in the Parole Hearing area of the law to ensure the correct relevant information is included in this 1-time FIRST chance at an early Parole Release. A 30-minute Legal phone Consultation ($150 - fee applies) can be scheduled with Attorney Diane Letarte via her website.

The inmates will be able to request to review their Central File PRIOR to their Annual Classification Committee Review, consistent with the existing Policies and Procedure for requesting their review of the Central file.


*** The majority of this information was provided directly from Jennifer Shaffer's (BPH Executive Officer) BPH memo dated December 30, 2014 from the BPH Quarterly Stakeholders Meeting.