Friday, December 22, 2017

In re Rodriguez:(Superior) The Board’s Illegal Use Of Confidential Information

Superior Court, County of Sacramento
The Board’s Illegal Use Of Confidential Information!

Attorney Marc Eric Norton in conjunction with ECC (GARY ECCHER) had a BIG WIN in the Sacramento Superior Court.  Congratulations in receiving justice for ALL INMATES being denied parole by the illegal use of confidential information ! ECC can be contacted at:

PO BOX 50106
IRVINE,  CA  92619

 See ECC Newsletter#32  excerpt BELOW--> 

 Rodriguez  (a.k.a. JROD) was 52-years old and had spent 27-years in prison while serving a sentence of 17-years to life for second degree murder at the time of the 2016 hearing. The Board denied parole based on (4) confidential information Memos dated:
>September 16, 2013,
>February 28, 2013,
>March 19, 2010,
>February 6, 2008,.

The confidential information was never disclosed prior to the parole hearing The Board acknowledged this was a “difficult decision today” but there still were some issues that link JROD to current dangerousness—institutional behavior, credibility and/or minimization. NOTE:  (1) the Board never found this confidential information was “reliable” as required by statute; (2) the Board did not deny parole based on the offense being “heinous, atrocious or cruel” within the meaning of the regulations. The court agreed with ECC and issued a 57-page Order (dated: 8/18/17)

BACKGROUND: The commitment offense occurred at a deli where JROD and his friends were drinking and playing a capping game that they normally played with each other. Capping means clowning each other about things in life and trying to get someone’s goat. JROD was drunk and shot one of his friends to death during the
game. JROD had a stable social history and his rap sheet had an entry for threatening a school public officer in 1983, and he was convicted of misdemeanor battery. Postconviction history was exemplary, the Board found, “by clear and convincing evidence,” that JROD’s self-help programming, education, vocations, realistic parole plans, support in the community, and age supported parole. The Board also found JROD has not received a disciplinary infraction for 21-years which was “very positive.” He was remorseful. The Board acknowledged that he was “very close” to receiving a parole date, “it was a tough choice.”

The clinician stated that JROD demonstrated fair insight into his substance abuse problem and has an adequate plan to maintain sobriety in the community. The clinician concluded JROD is a low risk for future violence. As reflected above, the Board denied parole based on confidential information, credibility and minimization. But those two latter issues were related to JROD’S answers to the confidential information about his gang history. Within the petition, ECC cited In re Prewitt (1972) 8 Cal.3d 470, In re Olson (1974) 37 Cal.App.3d 783, and Ochoa v. Superior Court (2011) 199 Cal.App.4th 1274 in support of using the confidential information illegally.

ECC used the same arguments they had perfected in In re Salvador Buenrostro but eventually lost—still pending in the California Supreme Court.

Besides the illegal use of confidential information claim, ECC also filed the standard claim that there was no evidence to support the Board’s conclusion that JROD was currently dangerous. After the court issued the order to show cause, Respondent filed a Return, and as usual, they tried to make JROD look as bad as possible. The
court noted that Respondent failed to discuss the Prewitt/Olson/Ochoa case law, which, according to JROD, required the board to have disclosed enough information about the confidential information to allow JROD to defend himself about it at the parole suitability hearing, without disclosing the identities of anyone else in the confidential documents. Respondent also tried to claim that any error about not disclosing the confidential
information was harmless.

DECISION: The court found: Respondent is incorrect, regarding the lack of notice
and opportunity to be heard about the confidential gang information. It simply is not sufficient notice, for purposes of procedural due process, to inform JROD and his counsel at the outset  of the parole hearing itself that the parole board was going to consider four documents containing confidential information at the hearing, while refusing to disclose to JROD or his counsel any part of the content of those documents that could have been disclosed without endangering the safety of the institution or revealing the identities of persons named in the documents. Indeed, the court has now been able to reveal such
information to JROD, as summarized above, as the summaries above have been carefully crafted to not endanger the safety of the institution or reveal anyone else's identity.

The court also found that 15 Cal. Code § 3321 should be interpreted as also applying to parole decisions when based on confidential information. 15 Cal. Code § 2235 should be interpreted as requiring that before such information is used, that the procedures regarding confidential information have been employed, and that would include both notice of the gist of the confidential information, in a redacted manner, as well as determination of reliability under the dictates of the regulations. And, under In re Estrada (1996) 47 Cal.App.4th 1688, sufficient evidence must exist to show that the confidential source is reliable, before the confidential information may be used.

Prewitt/Olson/Ochoa cases indicate that due process requires notice of the gist of the confidential information to JROD before the parole hearing, in a redacted manner so as not to endanger the safety of the institution or reveal the identity of any other person, and to give JROD an opportunity to respond to the confidential information, as revealed to him in a redacted format, at the parole hearing itself. JROD was denied that opportunity. JROD still does not know what is contained in the four confidential documents; the gist of the documents was never revealed in any form to JROD or his counsel. Nor does it appear that any of the confidential documents reveal any specific information that supports the conclusions in them that the confidential information given by the confidential informant in each is reliable. The first lists a reliability reason that is not listed in 15 Cal. Code Reg. § 3321 (b) (c) at all, nor does that reason given, that the interviewed inmate admitted to participating with the gang's prison politics while housed at a different institution, show any reason to believe that the information the inmate gave about JROD was reliable, nor is any corroborating evidence regarding JROD noted in the report.

The second and third documents make only vague conclusions that some other, unspecified evidence corroborated the information contained in them. And, the fourth document makes a conclusory statement that the information has proven to be true, without reference to what occurred with regard to JROD that shows that the information about JROD was in fact true.

These documents do not appear to show any satisfactory assessment of reliability under meaning of 15 Cal. Code Reg. § 3321(b), nor did the parole board, during its in-camera portion of the parole hearing, undertake any assessment of reliability. As such, it does not appear that the confidential documents should have been considered at all. And, it appears clear that the main basis for the parole board's denial of parole to JROD was the confidential information about JROD's purported gang activities throughout his years in prison, that JROD's commitment offense showed JROD's gang mentality, and that put together the continuing gang mentality of JROD and his prison gang activities rendered him an unreasonable risk of danger to the public safety if released from prison.

Had JROD and his counsel been given notice of the confidential information in advance, in a redacted format such as summarized by the court above, JROD and his counsel could have challenged the use of the confidential information due to a lack of sufficient finding of reliability of each of the confidential sources. JROD also could have been able to respond to the accusations made against him by the confidential sources, during the parole hearing. Not having been given the notice and opportunity to challenge the confidential information, JROD was denied procedural due process and is entitled to a new parole hearing.

The Board is HEREBY DIRECTED by this court to VACATE its denial of parole to JROD, and to conduct a new parole hearing within 60-days of the issuance of this order.  Bottom line: The court found the Confidential Information -UNRELIABLE.


Monday, November 20, 2017

Ca. Santa Clara Sup. Court got it right: "Preponderance Of the Evidence" is the correct BPH standard

In the United States legal system, there are several Standards of Proof that must be met before the judge (or decision maker) decides who wins a case. Below are definitions of the standards, in order to better understand a recent (11/14/17) Superior Court Judge Order from Santa Clara. The Judge Granted an inmate's Habeas Corpus Petition, based on the Board of Parole Hearings, using the wrong Standard of Proof during the hearing.

The Preponderance of the Evidence is a standard of evidence, or standard of proof, normally used in civil trials vs. criminal trials.Although not the law, we sometime state the standard of proof, in a numerical value. Here the requirement would be that more then 50% of the evidence points to something. For example: At the end of civil case A v. B, 51% of the evidence favors A. Thus, A has a Preponderance of the Evidence, A has met their burden of proof, and A will win the case. The English expression "More likely than not" is also sometimes used for describing this burden of proof.

If we extrapolate this method to the Parole Suitability Hearings, then it means if Parole is Denied - the unsuitability factors must be found by a Preponderance of the Evidence. In other words, the Board is required to weigh all the relevant evidence and if 51% of the evidence favors unsuitability then the Board can deny a parole grant. They should NOT use the highly differential standard of "some evidence"  used by the Court. If we ventured a numerical value the "some evidence", it may require maybe only 5-10% of the evidence favors unsuitability. (Note : Editor's opinion on this "some evidence" numerical value)

The next most stringent category is “Clear and Convincing Evidence,” which is used in some criminal trials, civil cases, and now in the Board of Parole Hearings (BPH) when applying Marsy's Law length of Denial (3 to 15 years). A medium level of burden of proof which is a more rigorous standard to meet than the preponderance of the evidence standard, but a less rigorous standard to meet than proving evidence beyond a reasonable doubt. 

Finally,  the criminal courts use the highest standard of guilty “Beyond a Reasonable Doubt”. Those legal authorities who venture to assign a numerical value to “beyond a reasonable doubt” place it in the certainty range of 95%.

Given all these Proof of Standard definition (above), Hon. Eric S. Geffon of the Santa Clara California Superior Court  ORDERED (11/14/17) the Petitioner (Inmate ORLANDO CRUZ VASQUEZ) ) be afforded a new Parole Hearing using the proper Burden of Proof standard of  Preponderance of the Evidence.  Attorney NOTE: this case is not citeable since it is only at the Superior court level and obviously not a Published case. To get a copy of the In re Vasquez Order, please email our law office at (my legal assistant)  use the SUBJECT line: VASQUEZ ORDER request.

Make sure when you hire a Parole Hearing attorney that they use the Proper Law [when fighting for your Loved one] and also knows which Standards of Proof to apply at the Parole Hearing- it can make the difference between a Grant and a Denial!  


Friday, October 13, 2017

Gov. signs AB 1308 to expand Youth Offender to 25 y.o.

SACRAMENTO – On October 11,2017 Governor Edmund G. Brown Jr. signed legislation to improve California’s criminal and juvenile justice systems, restore the power of judges to impose criminal sentences and reduce recidivism through increased rehabilitation.

The Governor signed the bills enumerated below (among others) but of immediate importance to the current Youth Offender (ISL/DSL) Lifer or Determinate inmate population are:

 • AB 1308 (Stone) expands the Youth Offender parole process for persons sentenced to lengthy prison terms for crimes committed before age 23 to include those 25 or younger. BOTTOM LINE:
Both Inderterminate (ISL) and Determinate (DSL) inmates that committed their crime at the age of 25 years old (the day of the crime Not the sentencing day) or under will be eligible for a Youth Offender Hearing on or before January 1, 2020 and January 1, 2022, respectively. Furthermore those youth offender inmates will receive a CONSULTATION by meeting with a Commissioner on or before January 1, 2019.

NOTE: CONSULTATION HEARINGs are not hearings and no attorneys are allowed at the Consultation.  It is only a Consultation with a Commissioner to give a brief orientation to the inmate (Youth offender) on what s/he needs to work on before his/her actual Youth Offender Parole Suitability Hearing.

• AB 1448 (Weber) allows the Board of Parole hearings to consider the possibility of granting parole to an elderly prisoner who has served at least 25 years in prison. This bill will codify the 3-Judge Panel guidelines to give special considerations to the Elderly inmates. BOTTOM LINE: if the inmate is 60 years old and has been incarcerated at least 25 years, he will qualify for an Elderly Parole Hearing. The Board of Parole Hearings (BPH) will normally look at health factors, cognitive functioning, as well as mobility issues during the Elderly Parole Suitability Hearing. This is NOT to be confused with the Expanded Medical Parole (EMP) hearings nor the Compassionate Release. If you need more information on the difference on this terminology consult an attorney, familiar with this area of the law.

• SB 394 (Lara) ensures compliance with U.S. Supreme Court decisions by allowing children sentenced to life without the possibility of parole (LWOP inmates) to be eligible for a parole hearing after 25 years of incarceration. BOTTOM LINE: they will not need to file a Petition in Court to lift the LWOP top; unlike the old SB9 and Miller V. Alabama Petition that needed to be filed in Court to be re-sentenced the inmate as a Lifer with Possibility of Parole.

It is expected that these Laws will become effective as of January 1, 2018. It will surely increase the work load of all the 15  Governor appointed Commissioners working at the Board of Parole Hearings (BPH) - be patient the NOTICES will surely be provided to the inmates in the near future if they qualify as a youth offender - BE PATIENT but BE PREPARED. If you feel BPH made an error in finding your loved one NOT eligible you may want to hire an attorney that is familiar with these new laws and the Parole Hearing area.

Wednesday, September 27, 2017

In re Palmer (7/26/2017): BPH to give "deferrence" to Youth Factors

Case Name: In re Palmer , District: 1 DCA , Division: 2 , Case #: A147177
Opinion Date: 7/26/2017 , DAR #: 7132

Case Holding:
Board of Parole Hearings' refusal to calculate base and adjusted base term at inmate's parole hearing entitles youthful offender to new hearing. In 1988, when he was 17 years old, Palmer pleaded guilty to kidnapping for robbery. He was sentenced to life with the possibility of parole and has since been denied parole 10 times.

At his most recent parole hearing in June 2015, the Board issued a five-year denial of parole and refused Palmer's request to calculate his base term and adjusted base term, stating it did not set terms for youthful offenders. Palmer filed a petition for writ of habeas corpus, arguing the settlement terms of In re Butler (2015) 236 Cal.App.4th 122 required calculation of his base and adjusted base terms. After the court issued an order to show cause, the Board calculated Palmer's base term and adjusted based term. Held: Petition granted.

The Butler settlement requires the Board to set the base terms and adjusted base terms for life inmates at their initial parole consideration hearing, or in their next scheduled parole consideration hearing that results in a grant of parole, denial of parole, a tie vote, or a stipulated denial of parole. Unlike the parole suitability determination, which focuses on current dangerousness, the setting of the base term is designed to insure that life prisoners do not serve terms disproportionate to their individual culpability. The adjusted base term indicates the point at which a denial of parole will result in constitutionally excessive punishment, and the Board must consider the relationship between the adjusted base term and time served before denying parole.

Here, the Board did not calculate Palmer's base and adjusted base term until after it issued a five-year denial of parole so the issue of excessive punishment was not factored into the term of the Board's denial. Palmer's June 2015 parole hearing did not comport with Butler and the Court of Appeal ordered the Board to conduct a new hearing in light of the terms it now has set for Palmer.

[CCAP Editor's Note: Justice Kline filed a concurring and dissenting opinion, agreeing that Palmer is entitled to a new hearing but questioning whether it is proper for the Board to apply the same base term criteria to youth offenders as it does to adult offenders, an issue the court expressly declined to address. In Justice Kline's opinion, the base term for youth offenders should be adjusted to reflect the "diminished culpability" of juveniles as compared to adults.]

NOTE: It is very worth while to read  Justice Kline's well articulated opinion on the "dimished culpability" of the youth offenders - which is not reflected ANYWHERE in Title 15 CA code of Regs. (aka the matrix) that is used in setting the Base Terms during a Youth Offender's Parole Hearing.

A BIG THANK YOU to CCAP's weekly summary of case Editor(s)!

The full opinion is available on the court's website here:

Wednesday, August 9, 2017

Senate Concurrent Resolution SCR 48: What is it and How would it impact Inmates?

Our law office received several inquiries on SCR 48, thus it was best to provide a good article Excerpt from the July 2017 LSA Newsletter - written by Vanessa Nelson of LSA.


A basic understanding of the legislative process starts with knowing the difference between AB and SB bills; in California as well nationally, there are two houses in the legislature.

In California those are the state Senate and the Assembly. Bills (potential laws) that originate in the Senate are labeled SB, and those starting in the Assembly as AB.

So what is an SCR?  SCR stands for Senate Concurrent Resolution. Breaking it down, this piece of quasi-legislation originated in the Senate, concurrent means the other chamber (the Assembly) agrees, with the language, the resolution.

More particularly, what is SCR 48, where is it in the legislative process and what, if anything, will it do to change laws relative to lifers? The short answer to the last part of the question is; nothing, yet.

According to the California legislature, a Continuing Resolution is “A measure that can be introduced in either House, but must be approved by both Houses and filed with the Secretary of State to take effect. The Governor’s signature is not required.” In fact, the resolution is not even submitted to the Governor, and thus a resolution, even one approved by both houses of the legislature, does not have the force of law.

In this case, SCR 48, which has passed the Senate and has good chance of passage in the Assembly, expresses the intention of the legislature to “recognize the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.” Specifically, if this resolution at some point becomes the basis for a bill, it would impact the felony murder law.

Quoting from the language of the resolution: “It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability; reform is needed in California to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under “natural and probable consequences” doctrine so that the law of California fairly addresses the culpability of the individual.” The language continues, the felony murder rule is “is fundamentally unfair and in violation of basic principles of individual criminal culpability,” and “In California, people who commit a felony are not sentenced according to their individual level of culpability.

Cut to the chase, after several more ‘whereas’ statements, which lay out all the issues with the felony murder law, the resolution gets around to business, that the legislature “recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.”

Thus the legislature has expressed its collective feeling that the felony murder rule is inappropriate, unjust and costly. Now, if only next legislative session, someone will just take that resolution and turn it into an actual Bill, passage of which could actually change that the law.


A BIG THANK YOU [to our strong Lifer Advocate Vanessa Nelson] out of the Sacramento area which is well located (in the Capital city) to advocate and support new laws.

**  EXCERPT from: Vanessa Nelson-Sloane’s Article from the from Life Support Alliance (LSA) July 2017 newsletter - thank you for clarifying SCR 48 and its process in the law making procedures.

Friday, July 7, 2017

6/24/17 ECC 5th ANNUAL LIFER BBQ: Do you recognize anyone?

FIFTH ANNUAL LIFER BBQ at City Buena Park - Fun had by ALL again!

The Fifth annual lifer picnic Hosted by Gary “Red” Eccher and Attorney Keith Chandler [ECCHER CONSULTING COMPANY (ECC)] gets better every year, with the typical grilled hot dog, BBQ style. We had additional food items ranging from pizza to fried chicken; delivered on the hour (fresh and hot) for several hours through the day.  The meals were well rounded with veggies, fruits and sweets! We had great 70 ish degree weather with a cool breezes in the typical Southern Sunny California day. 
Over 300 people gathered thorough the day at Buena Park from Noon to 6 pm. We had the typical LIFER Group picture (see below) at 3pm. This year there was a Southern California  "Pow Wow" by several Lifer Criminal Defense Attorneys (and paralegals) participating in a strategy session to deal with what seems to be developing anti-Lifer trends at BPH. 
(Left:  "Red" and Diane Letarte - aka Renegade Attorney)

 On the lighter side - several Photos were taken:
 - Courtesy of Attorney Diane Letarte and her legal assistant Yolanda Navarro.


 As Vanessa Sloane (:SA) would say: "Some parolees had been out only a few days, some several years, but all were united by the fellowship only earned through surviving the crucible of prison and parole."


 Attorneys Diane Letarte, Marc Norton, Michael Beckman, Keith Chandler and infamous "Doc" Miller

 The Three Amigas:   Vanessa Nelson, Attorney Letarte, Sister Mary Sean Hodges

 Debbie Page, Laura Sheppard were among several other attorneys that appeared at the Lifer BBQ.

A friendly chat with "Red" and familiar faces of the Law Office of Diane Letarte including Yolanda Navarro, Legal Assistant (Yolanda's mother Irma) and Lydia Lenz!

Some of our Clients enjoying Freedom

Attorney Keith Chandler having an intense discussion with Attorney Marc Norton, Attorney Michael Beckman, and Vanessa Nelson-Sloane (from LSA)


Monday, June 19, 2017

SB 394: Ending Juvenile Life without Parole and AB 1308 expansion to 25 y.o. YOPH (Youth Offender Parole Hearing)

The Law Office of Diane T.  Letarte has been getting many letters and phone calls regarding the expansion of current Juvenile Laws (SB9, SB260, SB261), to hopefully include the new SB394 and AB1308. (see our prior BLOGs on the existing Youth offender laws)

First, everyone must be aware that SB9 applies to only LWOP juveniles, meaning they were under the age of 18 years old when they committed the crime and have no Possibility of Parole. Second, the SB260 and SB261 (under the age of 23 on the day of the crime) ONLY applies to Lifers (with Possibility of Parole) and Determinate Sentence (DSL) Juvenile inmates, not to LWOPs (Life without Possibility of Parole). If we remember the SB9 law, it allowed the JLWOP to petition the Court to be re-sentenced to take into consideration the "Hallmark features of Youth" (more or less) at the time of the crime to mitigate their sentence, thus having the possibility to eliminate the LWOP sentence  to a Life sentence with the Possibility of Parole. LESS GUILTY BY REASON OF ADOLESCENCE - sorta speak!

Having the above juvenile law stated, then we can report that the new SB394 and AB1308 are moving along successfully BUT---- they are NOT law at the writing of this article. In short, SB 394 would automatically send LWOP inmates who were under 18 at the time of their crime to a Parole Hearing after 25 years of incarceration. AB 1308 would extend YOPH (Youth Parole Hearing non-LWOP) considerations to those who were “25 years of age or younger”,  at the time of the crime.

SB 394: Would allow those sentenced to LWOP for crimes committed before the age of 18 to be automatically seen by the Board of Parole Hearings (BPH) after 25 years of incarceration. This bill passed the Senate floor, and is now in the Assembly committee process awaiting assignment to committee, expected to be Assembly Public Safety. No date yet set for a vote; We support this bill.

AB 1308: Extends the provision of Youth Offender Parole Suitability Hearings to those who were “25 years of age or younger” at the time of the crime. This bill, which extends (SB260/261) YOPH consideration is now in the Senate committee process, expected to be referred to Senate Public Safety. It cleared the Assembly floor, largely along party line votes. We support this bill. 

Furthermore on SB394, it would remedy the now unconstitutional juvenile sentences of life without the possibility of parole (JLWOP). This bill would:

---Allow the approximate 290 juveniles with LWOP cases to be eligible for an initial parole hearing after 25 years of incarceration. There would be no guarantee of parole, only an opportunity for the person to work hard and try to earn the chance for parole via the Board for a Youth Offender Parole Suitability Hearing (BPH).

---Streamline the process and bring California into compliance with the U.S. Supreme Court’s most recent ruling by making juveniles sentenced to life without parole  (JLWOP) eligible under the state’s existing youth offender parole (SB 260 governed by Penal Code 3051) process.

---Eliminate the need to Petition the Court for a resentencing hearing (if you were under 18 y.o at the time of the crime), which is the current process under the SB9 law.

For a complete legislative FACT sheet (SB394) see Senator Ricardo Lara

Monday, April 17, 2017

In re Trejo: Youth Offenders, NOT Required to Serve Thompson Terms After Granted Parole

Filed 4/13/17




 A149064  (Marin CountySuper. Ct. No. SC197534A)

This case stand for the fact that Youth Offenders, are NOT Required to Serve Thompson Terms After Granted Parole, if the new crime was committed "in prison" and under the age of 23 years old. Furthermore, if there were detained longer than needed, the excess time can be credited against the Parole time.

Whether a “youth offender” sentenced to a term of 15 years to life for an offense committed when he was 17 years old and found suitable for release on parole pursuant to the youth offender parole provisions of Penal Code section 3051 must, before being released, serve a consecutive sentence imposed for a crime committed in prison at age 20

We conclude that the decision of the Board of Parole Hearings requiring petitioner to serve the consecutive term after being granted parole, and its implementation by the Department of Corrections and Rehabilitation, were erroneous. 

Petitioner was convicted of second-degree murder and sentenced to 15 years to life in prison. The offense was committed in 1979, when petitioner was 17 years old. In 1982, at age 20, he pled guilty to assault with a deadly weapon on a peace officer and possession of a deadly weapon by a prisoner and was sentenced to four years, to be served consecutively to his life sentence. In 2015, after serving 35 years in prison, petitioner was found suitable for parole as a youthful offender under Penal Code 3051, effective in November 2015. Petitioner claimed that his release date was recalculated as November 2, 2017, based on a correction in his credit earning status. In June 2016, petitioner filed a habeas corpus petition challenging the legality of his continuing incarceration.

The trial court denied relief, concluding that section 3051 does not exempt a youthful offender granted parole from serving a consecutive sentence for an offense committed in prison, citing section 1170.1(c), which provides that a consecutive sentence for an in-prison offense “shall commence from the time the person would otherwise have been released.” The court of appeal granted relief; section 1170.1(c), does not apply to petitioner’s case because his in-prison offense was committed before he was 23 years old, so he was entitled to release at the end of his indeterminate sentence pursuant to section 3051(d).

Respondent is ordered to amend petitioner’s release date to November 2, 2015, and to deduct from his parole period the days of incarceration served beyond that date. Our order filed on April 10, 2017, granting petitioner’s motion for release, ordered respondent Warden of Ironwood State Prison to release petitioner on parole, in accordance with the terms of his parole grant and demands of due process pending resolution of his petition in this court. 

We now order that relief as the final decision of this court on the petition for writ of habeas corpus. Good cause appearing, this decision shall be final as to this court immediately. (Cal. Rules of Court, Rule 8.387, subd. (b)(3)(A).)

The full Court of Appeal decision can be downloaded HERE.

Congratulations to Attorney Tracy Lum for this Published Opinion.

Wednesday, March 8, 2017

In re Reynolds 2/24/17: Stale Psych records: Gov. Arbitrarily ignored Pertinent evidence.

  In re Reynolds, 2017 Cal. App. Unpub. LEXIS 1374 
  California 1st District Court of Appeal, Div 2
  A146227 (Cal. Ct. App. Feb. 24, 2017) 

Jude Kline strikes again to give the LIFERS another good CA State case.
Although this is UNPUBLISHED, there are some good wording, for arguments in future Writs against a Governor reversal. NOTE:Staled evidence used by an old 2011 Psychological evaluation indicated that the Gov. arbitrarily ignored probative current evidence.

Dwayne Reynolds, a 56-year-old prisoner, was sentenced to serve 26 years to life in prison after a jury convicted him of murdering his employer, Timothy Fitting, in 1990. He has been incarcerated in San Quentin Prison since then and eligible for parole since August 21, 2007. Reynolds was granted parole by the Board of Parole Hearings on June 12, 2014. The Governor reversed the Board's grant of parole on October 31, 2014. We shall find that the Governor's reversal of the grant of parole is unsupported by some evidence and therefore arbitrary and unreasonable. As Reynolds was deprived of his constitutional right to due process he is entitled to immediate release from prison.

The Governor relied on two factors to reverse the Panel's Grant of Suitability.
The first was that Reynolds's crime was "extraordinarily heinous. Reynolds waited for Fitting to arrive at work, distracted him, and then viciously attacked him with a wrench, bludgeoning him nearly 30 times" Moreover, "[t]his was not the first time that Reynolds had reacted violently in a drug-related situation. In 1983, he was convicted of assault with a deadly weapon after he stabbed someone numerous times during an altercation related to crack cocaine." 

The second factor, which the Governor dwelt upon at greater length, was the concern that "Reynolds has not sufficiently explored the connection between his drug use and his violence." "Reynolds admits that he had a debilitating drug problem, particularly related to his use of crack cocaine for eight years before the murder. He told the Board that he decided to kill Fitting because when he stole the computer 'that was a game changer . . . . There was so much shame, so much hurt that I would stoop that low to steal from someone that cared for me . . . . He said that he struck [the victim] so many times 'to make sure that [he] was dead,' and because 'I was so much full of anger, enraged, directed at myself. I had spent so many years of chasing drugs where I had become so ashamed, and I felt so bad that I could steal from someone that was so good to me, and in my thinking was that I couldn't face Timothy.' "

The Governor relied upon the paragraph in the comprehensive risk assessment (CRA) of Reynolds undertaken by Dr. Venard in connection with Reynolds's 2011 parole hearing, which, as previously noted, had been emphasized by the district attorney at the hearing. GOvernor goes on to state.." until Reynolds can better explain his decision to murder Fitting and the extreme violence he used when doing so, I do not believe that he is prepared to be released."

The court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence. At the same time . . . the Board's decision must ' "reflect[ ] due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards." '(citations omitted)

The Governor's written decision does not refer to any of the regulative factors indicative of suitability for release on parole or unsuitability for release (other than the gravity of the commitment offense), but his silence seemingly indicates an acknowledgment that all of the applicable factors indicating suitability apply to Reynolds and none of those indicative of unsuitability—save the gravity of his commitment offense—are applicable to him.

Apparently conceding that Reynolds demonstrates all of the qualities Board regulations deem indicative an inmate is suitable for release, the Governor focuses on a paragraph in Dr. Venard's 2011 risk assessment as a basis for concluding that, "[g]iven the severity of this murder," Reynolds remains a security risk and is unsuitable for release, "until [he] can better explain his decision to murder Fitting and the extreme violence he used when doing so.

The Governor states that he "considered the evidence in the record that is relevant to whether Reynolds is currently dangerous," but it is evident that he gave unusual weight to the gravity of Reynolds's offense, which he justifiably described as "extraordinarily heinous." It must be remembered, however, that as our Supreme Court has said, "there are few, if any, murders that could not be characterized as either particularly aggravated, or as involving some act beyond the minimum required for conviction of the offense."

The Court goes on to state:   
 "We are concerned with the Governor's preoccupation with the "egregiousness" of Reynolds's homicide—which is immutable and cannot alone support the denial of parole (Lawrence, supra, 44 Cal.4th at pp. 1226-1227)—and the little weight he placed upon the statutory and regulatory factors concerning parole suitability (Pen. Code, § 3041, et seq., Regs., § 2230 et seq.), which the Supreme Court has repeatedly said must all be duly considered. (citation omitted)

The Court felt compelled to reverse the Governor's decision because his crucial determinations—that Reynolds has not developed an adequate understanding of the triggers associated with some of his incidents of drug use, and he must "better explain his decision to murder Fitting"—is based on stale evidence. The Governor has arbitrarily ignored pertinent evidence that is more recent and more probative than that he relied upon.

The petition for writ of habeas corpus is granted. The Governor is hereby ordered to vacate his decision of October 31, 2014, which reversed the Board's June 12, 2014 grant of parole. The Board's June 2014 grant of parole is reinstated, the denial of parole on November 6, 2016 is vacated (In re Copley, supra, 196 Cal.App.4th at p. 437), and the Board is directed to conduct its usual proceedings for a release on parole. (See In re Lira (2014) 58 Cal.4th 573, 582.) In the interests of justice, this opinion is made final as to this court seven days from the date of filing.

Wednesday, February 8, 2017

In re Perez (12/29/16) : Use of inmate's innocence claim Unlawful to Deny Parole

2016 Cal. App. LEXIS 1149
Court of Appeal of California, First Appellate District, Division Two 

BOTTOM LINE: : The Board's questioning of the inmate about the life crime and use of his
claim of innocence to find current dangerousness was unlawful - PERIOD!

SUMMARY: Perez  was convicted of kidnapping for purposes of carjacking. During the Parole Suitability Hearing the evidence showed Perez expressed insight into his behavior at the time of the life crime. He also showed remorse to the extent possible, given his continuing claim of innocence; Despite the explicit constitutional and statutory mandate to do so, the board repeatedly failed to consider the inmate's youth (SB260) at the time of the crime, which, while serious, did not lead to any injuries and occurred some 19 years ago when he was 16 years old; The inmate did not have an extensive history of prison rules violations; He had been an exemplary prisoner for many years.
The court is required to affirm a denial of parole unless the Board decision does not reflect due consideration of all relevant statutory and regulatory factors or is not supported by a modicum of evidence in the record rationally indicative of current dangerousness, not mere guesswork.

Analysis below by: Attorney Dennis Riordan
a Sustaining member of California Attorneys for Criminal Justice (CACJ) and has been a member since 1981.   (THANK YOU -   (Education use and for Defense Attorney)

The Court vacated the Board of Parole Hearings' decision denying parole to Perez,
sixteen years old at the time he suffered convictions for robbery and carjacking, resulting in a life sentence. Rather than blindly deferring to the Board’s exercise of discretion, Division Two took the time and effort to drill down on the reasoning of the Board and to carefully review the hearing
evidence, finding that the reasoning simply was not supported by the evidence. In doing so, the opinion provides a wealth of useful language and reasoning for those representing young offenders in not only parole matters but other procedural contexts as well.

First, the Court deprecated the Board’s reflexive reliance on “lack of insight’ as a basis for denying parole, noting that rationale had effectively replaced the “heinous nature” of the offense as a reason for denial, so as to now constitute the “new talisman” for such denials. The Court then engaged in a detailed exposition of the petitioner’s statements at the hearing as to his understanding of why he had engaged in a pattern of criminality as a teenager, labeling as “baffling” the Board’s “repeated insistence” that Perez “had not explained how he had gravitated to negative influences...” In a stinging rebuke, the Court cited case law to the effect that the Board’s “mere refusal” to accept evidence showing understanding and remorse did not constitute a rational and sufficient basis to find that the inmate lacks insight or is “currently dangerous.” And the Court emphasized that a finding of lack of insight supported only by the inmate’s refusal to admit or discuss the commitment offense violates the
regulations barring reliance on such a refusal as a basis for denying parole. Likewise, to the extent that a negative psychological evaluation also rested on the inmate’s refusal to discuss the commitment offense, the reliance on that report is improper. The Court held: “In the circumstances of this case, the
Board’s veiled reliance on petitioner’s continuing refusal to admit guilt clearly
violated its own regulations and cannot be countenanced.”

Furthermore, the Court refused to rubberstamp the Board’s reliance on another convenient rationale for parole denial: the inmate’s disciplinary record, finding that Perez’s rules violations did not “provide some evidence supporting a conclusion that he poses a threat to public safety,” because his
few violations were greatly outweighed by his many in prison “educational and vocational  accomplishments.” Finally, along with much additional and helpful discussion of parole policy, the Court focused on the Board’s “repeated refusal to consider petitioner’s youth at the time of his life crime, despite the explicit constitutional and statutory mandate to do so.” In so doing, the Court cited to both case law and scientific studies recognizing youth and immaturity as a mitigating factor in the
commission of crime.

The Court fittingly concluded that the Board was determined to find a way to deny petitioner parole, even as the evidence supporting a finding of current danger diminished with each year that went by. Unable to justify petitioner’s continued detention on any lawful ground, the commissioners latched onto his continuing claim of innocence, violated the law, and improperly found him suitable based on his refusal to admit to having committed the crime.


Wednesday, January 18, 2017

People v. Perez (8/1/16): A limited remand required to develop factors for Youth Parole Hearing: Franklin Hearing

Case Name: People v. Perez , District: 4 DCA , Division: 3 , Case #: G050927
Opinion Date: 8/1/2016 , DAR #: 9781

Case Holding:
An 86-years-to-life sentence for a defendant who was 20 years old when he committed three counts of attempted murder and other offenses does not constitute cruel and unusual punishment. Perez, a gang member, shot at three rival gang members, wounding one of them. He was convicted of three counts of premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187), gun use (Pen. Code, § 12022.53, subd. (d)) and other offenses. He received a sentence of 86 years to life. On appeal he claimed the sentence was cruel and unusual, as he was only 20 years of age when he committed the crime. Held: Judgment affirmed; limited remand ordered. In Graham v. Florida (2010) 560 U.S. 48, the court held a life without parole (LWOP) sentence on a juvenile convicted of a nonhomicide offense violates the Eighth Amendment and in Miller v. Alabama (2012) 132 S.Ct. 2455, the court extended this view to a sentencing scheme that mandates LWOP for juvenile offenders. The California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262, found a term of years that exceeded a juvenile offender's life expectancy cruel and unusual punishment. Perez argued the holdings of Graham, Miller, and Caballero should apply equally to defendants of his age. However, because Perez was not a juvenile at the time of the offenses, the considerations in these cases are inapplicable and the Court of Appeal declined to extend them to defendants over the age of 18 years (agreeing with similar holdings in People v. Argeta (2012) 210 Cal.App.4th 1478 and People v. Abundio (2013) 221 Cal.App.4th 1211).

Court states: "Although we disagree his 86-years-to-life sentence constitutes cruel and unusual punishment, we must remand the matter for further proceedings consistent with this opinion. We affirm the judgment and order a limited remand.”  

A limited remand is required so defendant may have sufficient opportunity to put on the record the types of information relevant to a youth offender parole hearing. In response to Graham, Miller, and Caballero, the Legislature passed Senate Bill No. 260 (effective January 1, 2014), which created Penal Code sections 3051, 3046, subdivision (c), and 4801, subdivision (c). These sections provide a parole mechanism for juvenile offenders and require the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20th or 25th year of a defendant's incarceration depending on the controlling offense. Several categories of juvenile offenders are excluded, but these exclusions are inapplicable to Perez. Effective January 1, 2016, section 3051 was amended to extend the benefits of the section to anyone who committed his offense before the age of 23. In People v. Franklin (2016) 63 Cal.4th 261, the court found the juvenile offender's constitutional challenges to his sentence had been mooted by the enactment of sections 3051 and 4801, because the defendant might obtain release after serving 25 years of imprisonment. However, the court remanded the matter to allow the defendant to make a record of the kind of information that sections 3051 and 4801 deem relevant to a youth offender parole hearing. Similarly, Perez's case must be remanded to allow him the opportunity to make a record of his characteristics and circumstances at the time of the offense so it may be available to the Parole Board in the future.

The full opinion is available on the court's website here: 

NOTE: Providing a big THANK YOU Central California Appellate Program (CCAP)  a nonprofit law office for providing this condensed version of the PEREZ Case. The summary included the modified Judgement (verbage) allowing an opportunity for defendants (inmates) to develop a Court record for relevant information at a future Youth Offender Parole Hearing.