10/27/20 In re TERRELL CURRY Superior Court (LA): Board can not use "plausible discrepancies" against Inmate version to deny parole, among other factors discussed.

 This October 27, 2020 Superior court case is great for specific factors  that come up all the time at a parole hearing. Does the inmate "lie" to agree with "the record" or provide his story that is inconsistent with the record? DOes a CDC-128 counseling chrono provide "some evidence" of dangerousness to be denied parole?  Read below and see what the LA Superior Court thinks.

A big "Shout Out" to Michael J. Brennan, Esq. and Heidi L. Rummel, Esq., of the Post Conviction Justice Project at the University of Southern California Gould School of Law who represented the Petitioner Terrell Curry.

We have pulled out a few paragraphs (here)  from the decision that explains that an inmate (among other factors) does not have to agree with “the record” if his version is ….as the court states:

    “Given that Petitioner's version is not "physically impossible" and "do[es] not strain credulity," and that there is every indication that he has accepted full responsibility for his crime and the harm that he placed everyone in that night, the Board is not permitted to use these plausible discrepancies against him to deny parole. (In re Palermo, supra, 171 Cal.App.4th at p. 1112.)

The court goes on to explain that even a small Rule Violation (RVR)  (aka CDC-128) does not provide “some evidence” of unsuitability  if the inmate has a long history of good conduct.

“……when an inmate has a track record of positive rehabilitation and generally has few rules violations, a non-violent counseling chrono "does not provide any evidence indicating a rational nexus between the misconduct and the Board's conclusion that [the inmate] poses a current danger to society." (In re Perez, (2016) 7 Cal.App.5th 65, 96.)


Below is an excerpt of the Memorandum of Decision by the Los Angeles Superior Court granting the writ of habeas corpus. Although it can not be cited, it contains good case Citation that can be used for arguments and to "make a record" during a BPH Parole Hearing.

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
October 27,2020
Honorable: WILLIAM C. RYAN
BH012985
(Underlying Criminal Case No. BA214317-02)
In re TERRELL CURRY, Petitioner on Habeas Corpus


FACTUAL BACKGROUND

Petitioner is serving an indeterminate life sentence following his conviction for two counts of attempted murder of a police officer, two counts of assault on a police officer with a firearm and one count of assault with a firearm. He is currently serving his sentence at the California Correction Institution, located in Tehachapi, California.

On March l3, 2018, the Board of Parole Hearings (2018 Panel or the Board) convened an initial youth offender parole suitability hearing where it found Petitioner unsuitable for parole based on his credibility regarding the offense. (Hearing Transcript, dated Mar. 13, 2018, attached to petn. as Exh. E.) The 2018 Panel also questioned if Petitioner's low comprehensive risk assessment rating would have remained low if he had explained his version of events to the psychologist the way he explained it to the 2018 Panel. On April 10, 2019, Petitioner filed a writ of habeas corpus contending "there is no evidence that [Petitioner] poses a current danger to society." (Petn. at p. 3.) This court dismissed the petition as moot because Petitioner's next Board hearing was scheduled for August 22,2019.

On August 22, 2019, the Board of Parole Hearings (Board) convened a first subsequent parole consideration hearing where it found Petitioner unsuitable for parole based on the commitment offense, petitioner's violent criminal history, a CDC 128-A Counseling Chrono (Counseling Chrono) he received one month before the current hearing, and lack of credibility and minimization. The Board issued a 3-year denial. (Hearing Transcript (HT) dated Apr. 28, 2020, at pp.81-89.)


April 28, 2020, Petitioner filed the instant writ of habeas corpus contending that the Board improperly relied on the counseling chrono to deny him parole because there is no nexus between the chrono and his current dangerousness, and that the Board may not deny parole if Petitioner's version of events is "not physically impossible" and does "not strain credulity such that ,the [inmate's version] is delusional, dishonest, or irrational." (Petn. at p. 21. [brackets in original]; quoting In re Palermo (2009) 171 Cal.App.4th 1096, 1110-1112.)

On June 10, 2020, the undersigned issued an Order to Show Cause, finding Petitioner made a prima facie showing that he is entitled to habeas corpus relief. (Cal. Rules of Court, rule 4.551(c)(1).) The court asked the parties to specifically address the Court of Appeal's opinions in In re Palermo (2009) 171 Cal.App.4th 1096 and In re Perez (2016) 7 Cal.App.5th 65, and how they relate to Petitioner's recent institutional misconduct and his differing version of the commitment offense.

On August 19, 2020, Respondent filed a Return asserting that there is "some evidence" to support the Board's decision that Petitioner is 'unsuitable for parole due to his recent institutional misconduct, his lack of credibility, and his continued minimization of the commitment offense. (Return at pp. 3-6.)

On September 18, 2020, Petitioner filed a Traverse. Petitioner asserts that there is no "rational nexus" between the "minor counseling chrono" he recently received and the commitment offense as explained by the Board and therefore it cannot support a finding of unsuitability. (Traverse at pp. 1- 4.) He also contends that the Board's denial of parole based on his plausible version of the commitment offense is improper and is a violation of due process. (Id. at pp. 4-6.)

The court finds an, evidentiary hearing is unnecessary because determining whether Petitioner is entitled to relief does not depend on the resolution of an issue of fact. (Cal. Rules of Court, rule 4.551(f).)

SUMMARY

Having independently reviewed the record, and giving deference to the broad discretion of the Board in parole matter, the court finds that the record does not contain "some evidence" to support the Board's determination that Petitioner is unsuitable for release on parole.

Given that Petitioner's version is not "physically impossible" and "do[es] not strain credulity," and that there is every indication that he has accepted full responsibility for his crime and the harm that he placed everyone in that night, the Board is not permitted to use these plausible discrepancies against him to deny parole. (In re Palermo, supra, 171 Cal.App.4th at p. 1112.) Accordingly, the court finds the record contains no evidence supporting a finding that there is a nexus between Petitioner's version of the commitment offense and his current dangerousness.

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The Board's minimization finding is not supported by any evidence. There is every indication in the record that Petitioner understands the danger the community and the deputies were put in that night and has worked for over 15 years to educate himself and program in an effort to rehabilitate. (RT at p. 82.) The Board erred in this regard.

Petitioner's institutional misconduct, even the minor misconduct, indicates that Petitioner is either unable or unwilling to conform to the requirements of the law and may constitute some evidence that Petitioner is a current danger to public safety and therefore unsuitable for parole. (See In re Reed, supra, 171 Cal.App.4th at pp. 1084-1085; In re Montgomery (2012) 208 Cal.App.4th 149, 164.) However, when an inmate has a track record of positive rehabilitation and generally has few rules violations, a non-violent counseling chrono "does not provide any evidence indicating a rational nexus between the misconduct and the Board's conclusion that [the inmate] poses a current danger to society." (In re Perez, (2016) 7 Cal.App.5th 65, 96.)

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The Board ultimately concluded, however, that the positives were outweighed by circumstances not supportive of his suitability for parole. This court is not entitled to reweigh the evidence before the Board; rather, it is tasked with determining whether the record contains some evidence in support of the Board's conclusion. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 656, 665-677.) As discussed ante, the court finds the record does not contain evidence to support the Board's conclusion, and that there is no rational nexus between the evidence in the record and the Board's determination of Petitioner's current dangerousness.

DISPOSITION

For all the foregoing reasons, the petition for writ of habeas corpus is GRANTED. The Board of Parole Hearings is ordered to conduct a new parole hearing within 60 days of finality of this order consistent with applicable law and this decision.

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