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Friday, November 11, 2022

10/18/2022 People v. Hardin: Youth Offender (under 26) with LWOP are still entitled to Franklin Hearing.

 

People v. Hardin , District: 2 DCA , Division: 7 , Case #: B315434 Opinion Date: 10/18/2022 

Case Holding: 

Denying a youth offender parole hearing to individuals sentenced to LWOP for offenses committed when they were between the ages of 18 and 25 violates equal protection.

 In 1990, Hardin, then 25 years of age, was convicted of special-circumstance felony murder and sentenced to LWOP. In 2021, Hardin filed a motion seeking to develop a record for an eventual youth offender parole hearing (a.k.a Franklin Hearing). The trial court denied the request, finding Hardin was statutorily ineligible for a youth offender parole hearing under Penal Code section 3051, subdivision (h). Hardin appealed, arguing that section 3051 violated his right to equal protection. 

Held: Reversed and remanded. 

An individual convicted of an offense committed when he was a young adult (25 years old or younger) and for which the sentence is LWOP, is not eligible for a youth offender parole hearing (Pen. Code, § 3051, subd. (h)) or otherwise entitled to parole consideration. In contrast, an individual convicted of an offense committed when he was a young adult, and for which the sentence is an indeterminate term of 25 years to life, is eligible for release on parole at a youth offender parole hearing at the beginning of his 25th year of incarceration. (Pen. Code, § 3051, subd. (b)(3).) 

After analyzing section 3051 and relevant case law, the Court of Appeal concluded that young adult offenders sentenced to LWOP are similarly situated to all other young adult offenders for purposes of section 3051. The purpose of current section 3051 is that the distinctive attributes of youth, which mitigate culpability and offer the possibility of growth and change, apply equally to young adults up to age 25. Accordingly, there is no rational basis for the Legislature to exclude otherwise similarly situated offenders from a youth offender parole hearing based solely on the crime committed or the sentence imposed. 

Hardin is entitled to a youth offender parole hearing based on his right to equal protection and, as such, is also entitled to a hearing to assemble[Fn.1] information concerning his youth-related mitigating factors. 

 DISPOSITION
The order denying Hardin’s motion for a Franklin hearing is reversed. The cause is remanded with directions to schedule the hearing and to conduct all appropriate further proceedings not inconsistent with this opinion.

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Fn1

Recognizing that gathering information on youth-related mitigating factors for a youth offender parole hearing is a task more easily accomplished at the time of sentencing rather than decades later at a parole hearing, the Supreme Court in People v. Franklin (2016) 63 Cal.4th 261, 283-284 held a defendant eligible for such a hearing must be permitted at the time of sentencing to make a record of those factors, a proceeding that has since  become known as a Franklin proceeding. The Court in In re Cook (2019) 7 Cal.5th 439, 458 held a juvenile offender with a final judgment could move in a postjudgment proceeding under section 1203.01 (rather than through a petition for a writ of habeas corpus) to present evidence of youth-related factors.
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NOTE:  The Court of Appeal concluded that distinguishing between juvenile and young adult offenders sentenced to LWOP does not violate equal protection. (2) The court noted that the Legislature may decide the youth parole eligibility date for a young adult sentenced to LWOP should be different from the 25th year of incarceration.]


The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B315434.PDF 

 

- Thank you for CCAP's summary of the HARDIN case.

Friday, October 7, 2022

CDCR has collaborated with trans METRO to provide free bus transportation to all 34 adult prisons- California

This October post is just a quick IMPORTANT ANNOUNCEMENT for all the Families of the Incarcerated.  

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 The California Department of Corrections and Rehabilitation (CDCR) has collaborated with Transmetro to provide free bus transportation to all 34 adult prisons in California as part of the department's commitment to enhancing access to visitation for incarcerated people and their loved ones.

TransMETRO is hosting the bus trip under a contract with CDCR. TransMETRO's ride-request system has been updated. To request a bus trip please submit an e-mail to: cdcr@transmetro.org up to three weeks before your visit. 

Please include the following information in your email: 

 • First and last name of any visitor(s) accompanying you on the trip 

 • First and last name of incarcerated person you are visiting. Please include CDCR number if known

 • Name of prison you are visiting. Use CDCR's Inmate Locator to verify the location in which your loved one resides. 

 • Date of visit 

 • Region you would like to be picked up from: 

        o Central: Riverside, Pasadena, Lancaster 

        o Southern: San Diego, Long Beach, Bakersfield 

        o Northern: Redding, Chico, Sacramento, Stockton 

        o Bay Area: Richmond, Oakland, San Leandro, San Jose Seats are reserved on a first-come, first-                serve basis. 

Please visit the Frequently Asked Questions section below for answers to all of your questions regarding riding transMETRO. A week prior to a scheduled trip, confirmed riders will receive an email with important details including pickup and drop-off locations and times. 

Potential visitors must also separately make a visiting appointment via the Visitation Scheduling Application (VSA). Directions for utilizing VSA to make a visiting reservation can be found here. 

 

David Maldonado 

Deputy Chief, Office of External Affairs (OEA)

 Office of Public and Employee Communication (OPEC) 

CA. Dept. of Corrections & Rehabilitation (CDCR)

Monday, August 29, 2022

SB 1437: People v. Vang , (8/5/2022): the meaning of the term “actual killer.” District: 3 DCA , Case #: C090365

This article is republish (for educational purposes) from the CCAP organization. Central California Appellate Program (CCAP) is a nonprofit law office. 

A big thank you for the analysis of the case below. 

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  People v. Vang, District: 3 DCA , Case #: C090365 Opinion Date: 8/5/2022  

 Case Holding: The term “actual killer” in Penal Code section 189, subdivision (e), means the person who personally committed the act that directly caused the victim’s death. Vang was convicted of numerous offenses, including the first degree felony murder of his wife with a kidnapping-murder special circumstance. The prosecution’s theory was that Vang kidnapped his wife, who was killed when she jumped out of his moving truck to escape. The prosecution argued that even if Vang did not personally kill the victim he still was liable for her murder because he committed an inherently dangerous felony—the kidnapping—that proximately caused her death. 

On appeal, Vang argued the jury was misinstructed to allow conviction based on an invalid theory of general causation. Held: Reversed and remanded. Senate Bill No. 1437 narrowed the circumstances under which a defendant can be convicted under the felony-murder rule. It amended section 189 by adding subdivision (e), which provides that a participant in the perpetration of a qualifying felony is liable for felony murder only if he is the actual killer, acted with the intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life, as described in Penal Code section 190.2, subdivision (d). 

The dispute in this case was over the meaning of the term “actual killer.” The legislative history of SB 1437 supports the conclusion that the Legislature understood the term “actual killer” to mean the person who “personally” commits the homicidal act. Here, the jury instructions did not provide a proper definition of “actual killer” and allowed the jury to find Vang guilty of felony murder, and to find the special circumstance true, if it determined he “caused” the victim’s death based on general causation principles. This was an invalid legal theory and reversal was required. 

Additionally, because the evidence was insufficient to support the theory of guilt on which the jury was instructed, Vang cannot be retried on the felony-murder theory or the felony-murder special circumstance.

 [CCAP Editor’s Note: The court expressed no opinion on whether double jeopardy would prohibit Vang’s retrial for murder under another theory.] 

 

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/C090365.PDF

Friday, July 15, 2022

Saturday 8/27/22: Seminar from LSA (Life Support Alliance) in So. CA.: First since the 2020 Pandamic

July is the month for the editor to take a break so no official BLOG. 

Instead of our normal BLOG ---->

We thought we would pass along the long awaited Seminar from LSA (Life Support Alliance)- Lifer Family Seminar Outlook for 2022. All are invited to attend, including Family of the Incarcerated, new attorneys, and everyone else interested in helping their Loved Ones (LO) that is incarcerated for a long term.  

 Sponsor of the seminar: LSA   staff@lifesupportalliance.org

David and Vanessa can be reached at : 

P. O. Box 277

Rancho Cordova, CA.  95741

916-402-3750

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  1. Hear from advocates, Attorneys, and paroled Lifers 
  2. A Day of Learning and Support
  3.  New Laws and Policies Resource for Lifers and Families
  4. Insight and Building a Parole Plan 
  5. This Seminar fee covers Materials and Lunch 

So many people were asking about a Southern California seminar from LSA. This will be their first since the 2020 Pandemic. 

 $50 at the door or you can register on the link for Early Bird Special of $45 here: 

2022-yorba-linda-lifer-seminar  Registration

WHEN: Saturday  8/27/2022 8:00 am to 3:30pm 

WHAT: Seminar from LSA in Southern California 

WHERE: Parking ON-Site 

     Richfield Comm. Church 

     5320 Richfield Rd 

     Yorba Linda, Ca 92886 

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Feedback from the LSA Sacramento seminar in June 2022:

At this moment I can just say it was divine. It was Clear to Me, God was pleased. Thank you, David, and Vanessa, I loved the seminar. It exceeded my expectations. It was perfect in every way: The speakers, the group leaders. the attendees, the attorneys in attendance. You and Vanessa, I felt the love with which you planned and executed the seminar.

 David and Vanessa, GREAT WORK again.  (Penny S.)

 

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LSA MISSION STATEMENT

 Our mission is to identify the needs and concerns of the greater lifer population and community, to assist lifers in becoming suitable for parole and articulating that suitability to the Board of Parole Hearings.  To educate the public and encourage dialogue between stakeholder groups on rehabilitation and reentry and to assist lifers and their families in understanding the parole system.  We are the voice and presence of lifers in the community.

Tuesday, June 7, 2022

WINNER of Attorney Letarte’s 2021 Parole Hearing Scholarship, was found SUITABLE on 5/19/22

As a reminder and per our previous December 2021 Parole Hearing SCHOLARSHIP BLOG; the Winner received Attorney Letarte’s PRO BONO (free) representation at their 2022 Parole Hearing. The Scholarship was made available throughout the 35 California State Prisons, as posted in the 2021 Prison Newsletters that endorsed our Scholarship. The two Newsletters were: ECC and POSSE as described below. 

 In the last several 2022 months, our law office was preparing the WINNER of the Parole Hearing Scholarship for his Board hearing. He followed all of our presentation strategies and did the requested homework including, re-writing each specific Relapse Prevention Plan(s), Apology letters, Book Reports, and Essays. All parties attended the VIDEO Parole Hearing including our client, who hails from CTF-Soledad. After several hours of questioning by the Panel, my client appeased all the Panel’s concerns and it was found that he did NOT pose an unreasonable threat of violence, if release to the free community. Of Course, there is a 150-day waiting period from the BPH Review Unit and the Governor’s office for the Decision to become Final. 

 A Big Congratulations to Anthony Stevenson, especially after being discouraged to enter the Scholarship’s writing contest, by some negative thinking peers. To his credits he found the courage to not only ENTER the Scholarship but actually WIN it! He relayed that he had never won anything in his life! The best part of it was that when he went to the Board with Attorney Letarte, and after some deliberation by the Commissioners, he was found SUITABLE on 5/19/2022. 

We now have authorization to post the NAMEs of the Winner as well as the runner-ups from our Parole Hearing 2021. 

 PRIZEs: 

1st Place Winner received a Pro Bono representation by Attorney Letarte at his 2022 Parole Hearing. 

2nd and 3rd place winners did receive the revised TIPS document (authored by Attorney Letarte, consisting of over 40+ pages) to assist with their own preparation at their next parole hearing. In addition, they received our Law Office’s 2022 Wall Calendar to keep track of all their important dates. 

 2021 SCHOLARSHIP NAMES for the 2022 Parole Hearing: 

 1st Place Winner was represented [Pro Bono] by Attorney Diane T. Letarte*** 

 1st Place WINNER from Correctional Training Facility (CTF) State Prison, Anthony Stevenson was admitted in October 1994 and is currently 48 years old. His Parole Eligible Date was 2/2011; Has been in the Board cycle since 2009.

Anthony Stevenson was found SUITABLE for Parole on 5/19/2022 !

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Although Attorney Letarte did not represent the runner-ups they deserved recognition for their writing essay skills that showed insight into their crime.

2nd Place (1st runner-up) from Ca. Substance Abuse Treatment Facility (SATF-COR) 

Richard Newman was admitted in June 1997 and is currently 51 years old. His Parole Eligible Date was 4/2004; Has been in the Board cycle since 2004 (denied 3 years in 2022) and returning in 2025

3rd Place (2nd runner-up) from Chuckawalla Valley State Prison (CVSP) 

Russell Farden was admitted in March 2009 and is currently 43 years old. His Parole Eligible Date was 10/2021; His Initial Board Hearing was postponed to late 2022 

NOTE OF INTEREST: We also heard back from some others [non-winner] scholarship applicants stating that the Scholarship writing essay made them gain more self-introspection. With that new gained insight they were better prepared for their Board Hearing(s) and some were found suitable when they went to their 2022 Board Parole Hearing. ============================================================== 

We may entertain doing a 2022 Scholarship for a 2023 hearing, depending on the availability of  Attorney Letarte. Please keep your eyes open for the next potential Scholarship listed (on this BLOG) and in the ECC or POSSE newsletters. The newsletters are usually found at the Prison library for Free or via a subscription to either newsletter listed below. You can write to subscribe to them. 

ECC  P.O. Box 5010 Irvine, CA 92619

POSSE  P.O. Box 900188  Palmdale, CA 93590 ============================================================== 

 The OLD 2021 CRITERIA for the Scholarship Application WAS as stated below. 

One can anticipate similar criteria for a potential 2022 Parole Hearing Scholarship for a 2023 hearing. 

1) No CDC-115 (RVRs) , in the last 5 years 

2) Psychological Evaluation (a.k.a. CRA) risk rating is either a Low or a Moderate  

3) You are NOT currently represented by a private attorney or a Law School Program

Monday, May 16, 2022

California v. Delgado (4/29/22) Youth offenders who are not eligible (i.e. 3X’er) for Early Parole Consideration are still entitled to Franklin Hearings to preserve evidence

California v. Delgado Docket: G059650 (Fourth Appellate District), Opinion Date: April 29, 2022.  

The Fourth Appellate District reversed a trial court order and remanded. The court held that youth offenders who are not eligible for early parole consideration under Penal Code §3051 are nonetheless entitled to Franklin hearings to preserve evidence for their eventual, non-§3051 parole hearings. Although Delgado's Three Strikes (3X) sentence rendered him ineligible for a youth offender parole hearing (YOPH), he was nonetheless entitled to an opportunity to preserve evidence of mitigating. 

The issue presented by this appeal was whether youthful offenders who are statutorily ineligible for early parole consideration were nevertheless entitled to a "Franklin" proceeding to preserve evidence for their eventual parole hearing. 

 During his early 20’s, appellant was involved in three separate criminal incidents. s a result of those incidents, appellant was convicted of kidnapping for robbery and multiple counts of robbery, burglary, false imprisonment and illegal gun possession. He was also found to have personally used a firearm during the offenses and suffered a prior strike conviction. The trial court sentenced him to 59 years to life in prison under the “Three Strikes” law. 

 In 2020, appellant requested a Franklin proceeding to present mitigation evidence in anticipation of his youth offender parole hearing (YOPH). However, the trial court correctly determined appellant was not eligible for a YOPH because he was sentenced under the Three Strikes law. Therefore, it denied his request for a Franklin proceeding. Appellant admitted he was statutorily ineligible for a YOPH because he was sentenced under the Three Strikes law. However, he contended he is entitled to a YOPH – and a concomitant Franklin proceeding – as a matter of equal protection. Although the Court of Appeal rejected appellant’s equal protection argument, both parties concluded he was entitled to a Franklin proceeding under the standard rules applicable to all parole hearings. The trial court's judgment was reversed and the case remanded for such a proceeding. 

BOTTOM LINE: The Legislature's reference to the above statute made clear that it intended the criteria set forth in §4801(c) to apply broadly to all parole hearings, not just youth offender parole hearings under §3051. Consequently, even though Delgado is not entitled to a youth offender parole hearings, the parole board will still---someday---have to consider his diminished capacity and subsequent maturation in assessing his suitability for parole.

Thursday, April 28, 2022

Franklin Hearing for youth offender : People v. Benzler (12/2021) 72 Cal.App.5th 743

Case Name: People v. Benzler (2021) 72 Cal.App.5th 743, District: 3 DCA, Case #: C092779 Opinion Date: 12/21/2021 

FRANKLIN HEARING (in General): 

A Franklin hearing is a supplemental sentencing hearing for defendants who were convicted for a controlling offense when they were under 26 years of age (Youth Offender in California). The hearing gives these inmates an opportunity to provide additional mitigating evidence related to their youth to the court. Franklin proceeding: the purpose of which is to allow the offender to assemble evidence at or near the time of the crime rather than years later when it may prove difficult to reconstruct. That evidence can then be used by the Board of Parole Hearings (BPH a.k.a. BPT) when it holds the eventual Youth Offender Parole Hearing (YOPH).

NOTE: The Public Defender will normally do the Franklin Hearing for the inmate. Different Counties execute this process differently. On occasion a Psychologist or a Social Worker will interview the inmate and/or the family to gather background information. A report will be produced and attached to a Motion for a Franklin Hearing, filed with the Court. If your Love One was a Youth Offender, s/he may qualify for this hearing. Call the Local Public Defender for free representation.  You can also hire a private attorney but it seems like the Public Defender for a specific County may have more free resources at their disposal to assist.

The name for a Franklin hearing comes from the California Supreme Court case, People v. Tyris Lamar Franklin. 

 Evidence provided during Franklin Hearings (FH) often deal with the inmates’: 

  1.      young age at the time of the offense and related factors, 
  2.      upbringing and any negative influences in the defendant’s early years, 
  3.      mental and emotional state, 
  4.      maturity, 
  5.      juvenile record, 
  6.      ability to understand that the offense was wrong, 
  7.      diminished culpability, when compared to adults, 
  8.      hallmark features of youth at the time of the offense, and 
  9.      subsequent growth and increased maturity while in prison 

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CASE HOLDING: 

Trial court erred in summarily denying defendant’s petition for a Franklin proceeding, as it set forth a prima facie case for a hearing. In 2011, when defendant was 18 years old, he killed the victim. The jury hung on whether defendant committed second degree murder and he pleaded guilty to voluntary manslaughter. “In 2020, defendant filed a ‘Motion for Franklin Hearing’ in the trial court, under the original caption and case number, seeking a Franklin hearing under [Pen. Code] section 1203.01, and citing [In re Cook (2019) 7 Cal.5th 439].” The request was summarily denied. Defendant appealed. Held: Reversed. 

Senate Bill No. 260 (effective 1/1/2014), created statutes regarding parole eligibility for offenders who committed their crimes at a young age. The statutes have been amended to apply to offenders who were under the age of 26 at the time of the offense. “In Cook, our Supreme Court explained the proper avenue to seek a Franklin proceeding for a final conviction is through a motion under section 1203.01,” bearing the original caption and case number. Defendant “was sentenced before section 3051 had been extended to his age group and before Franklin was decided, and thus had no opportunity or reason to place the relevant information on the record. This made him eligible for a Franklin proceeding,” the purpose of which is to allow the offender to assemble evidence at or near the time of the crime rather than years later when it may prove difficult to reconstruct. 

“Here, defendant’s motion met the initial requirements for eligibility.” There is no evidence defendant has had an opportunity to place evidence relevant to a Franklin hearing on the record, and the passage of time since his conviction cannot be the sole reason for disqualifying him from a Franklin proceeding, absent affirmative evidence supporting disqualification on this ground. The trial court did not provide any rationale for denying defendant’s motion, so there is no indication why it felt defendant was ineligible for a hearing. The denial of defendant’s motion was reversed. 

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The full opinion may still be available on the court’s website: 

https://www.courts.ca.gov/opinions/documents/C092779.PDF 

 

A Big Thank you to CCAP for the summary of People v. Benzler case. It is re-published here for education purpose.

Tuesday, March 29, 2022

Elderly Parole law AB3234: new Regulations for Elderly Parole finally enacted [by BPH] under 15 CCR 2449.40

Even though the Elderly Parole law AB3234 became effective last year. BPH is finally getting around to enacting Sections 2449.40 - 2449.43 [of Title 15], governing parole consideration hearings for elderly inmates. 

It may take CDCR a while to review all the inmates that qualify under AB3234 Elderly Law becasue CDCR recently received the Regulations from the Board Of Parole Hearings (BPH). 

The important sections of the new regulations enumerating the Elderly Inmate Factors are under Section 2449.43. The factors will be given Special Considerations during the Elderly Parole Hearings.

They are in summary as follows: 

§ 2449.43. Elderly Inmate Factors. 

 (a) Age. Consideration of an elderly inmate’s age includes the following: 

(1) Cognitive decline and its impact on an elderly inmate’s ability to process information, convert thought to action, the ability to learn, the ability to plan, recall or reorganize information, organize information, control impulses, execute a task, incorporate feedback, alter a strategy, sustain complex attention, or to calm down when emotionally aroused; 

 (2) Physiological changes that decrease the motivation to commit crime or be violent. 

 (b) Time Served. The impact of long term confinement of elderly inmates includes, consideration of the following: 

 (1) Reduced criminal propensity; 

(2) Alteration of attitudes and beliefs over time; 

(3) Evidence of prosocial routines; 

 (4) Social conformity; 

 (5) Detachment from crime producing environments and peers. 

(c) Diminished Physical Condition. The diminished physical condition of elderly inmates includes, consideration of the following: 

(1) The capability of an inmate to physically commit crimes and violence; 

(2) Chronic or terminal illness; 

 (3) Evidence of sensory impairment due to visual, hearing or speech impairment; 

 (4) Inability to ambulate or difficulty in ambulating without an ambulation assistive device; 

(5) Nursing Care Acuity; 

 (6) Diminished mental capacity; 

(7) Assistance with daily living activities that includes but is not limited to, feeding, bathing, dressing, grooming, work, homemaking, or communication; 

(8) Permanent incapacitation due to medical, physical, or mental health condition, or any other condition that results in permanent incapacitation; and 

 (9) Other evidence of diminished physical condition. 

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PENDING CHANGES TO THE BOARD OF PAROLE HEARINGS DEPARTMENT REGULATIONS can be seen at: the CDCR website

 

Pursuant to the requirements of Government Code section 11346.8 (c). and section 44 of Title I of the California Code of Regulations, the Board of Parole Hearings is providing notice of changes made to Regulation Number 21-04, proposed sections 2449.40, 2449.41, 2449.42, and 2449.43. Additionally. pursuant to the requirements of Government Code sections 11346.8( d). 11346. 9( a)( 1), and 11347.1. the Board of Parole Hearings is providing notice of the addition of a document to the rulemaking file to make available for public comment and inspection. 

The document added to the rulemaking file is as follows: 

Supplement to the Initial Statement of Reasons  

Regulatory Text Document is available for public inspection at the Board's office located at 1515 K street, 6th Floor, Sacramento. California 95814, from March 10, 2022, through March 25. 2022 between the hours of 9:00 AM and 5:00 PM. This document is also available to view on the board's website at: Regulatory Changes - Board of Parole Hearings (ca.gov). 

If you have any comments regarding the proposed changes or the Supplement to the Initial Statement of Reasons. the Board will accept written and electronic email comments between March 11, 2022 and March 25, 2022. 

All written and electronic email comments must be submitted to the Board no later than March 25, 2022, and addressed to: 

Chancellor Veal, Staff Attorney 
Board of Parole Hearings 
P.O. Box 4036 Sacramento, CA 95812-4036 
E-mail: BPH.Regulations@cdcr.ca.gov 

All written comments received by March 25,2022, which pertain to the indicated changes or the Supplement to the Initial Statement of Reasons will be reviewed and responded to by the Board's staff as part of the compilation of the rule making file. Please limit your comments to the modifications to the text and the Supplement to the Initial Statement of Reasons.

Monday, February 21, 2022

People v. Williams (2021) 71 Cal.App.5th 1029: Parole Revocation Report required for a Lifer who Violates Parole

Case Name: People v. Williams (2021) 71 Cal.App.5th 1029, District: 1 DCA , Division: 1 , Case #: A159914 Opinion Date: 11/23/2021

A big Thank You to the CCAP folks who review and summarize many of the Appellate cases. The Case Holding below is from CCAP and reproduce here for Education Purpose.

This case is specific to Lifers who violate Parole after being release to the free community. Yes, this happens! (but not too often).  All Parole Revocation Hearings are no longer done in the county jail by Commissioners, they are reviewed in Court with the District Attorney having the choice to file a Revocation Petition. As of 2013, the BPH no longer adjudicate revocation proceeding but as a LIFER, BPH still controls the case.

If  the  parolee  is  subject  to  Life  parole  under  sections  3000(b)(4)  and  3000.1  for  murder  or  designated  sex  offenses,  and  the  court  finds  the  parolee  has  violated the law or a condition of parole, the parolee "shall be remanded to the custody of  [CDCR]   and   the   jurisdiction   of   the   [BPH]   for   the   purpose   of   future   parole  consideration."    (§  3000.08(h).)    Thereafter  the  BPH  will  schedule  a  hearing  within  12  months to determine parole eligibility.  (§ 3000.1(d).). These hearing are known as Reconsideration Hearings within BPH (a.k.a. PC 3000). They are held every year and not subject to Marsy’s Law, which have the 3 to 15 year denial periods, at a Parole Suitability Hearing.
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Here the  Parolee was no longer in Custody. The Court chose to make a ruling; Hence, exercised its discretion to address the merits because the issue is of continuing public interest and likely to recur yet evade appellate review.

 Case Holding: Even where imprisonment is mandatory following a parole violation by a person serving a life term, the court must obtain the parole agency's written report under Penal Code section 1203.2, subdivision (b)(1).

Defendant was on parole from a life term sentence. He was found in violation of parole and remanded to prison, as required by Penal Code section 3000.08, subdivision (h). On appeal, defendant argued the trial court erred in refusing to refer the matter to the parole agency for a written report (Pen. Code, § 1203.2, subd. (b)(1)) before ruling on the revocation petition.

 Held: Appeal dismissed as moot, but merits reached. Where a parole revocation petition is filed by the parole agency, section 3000.08, subdivision (f) requires that the petition be accompanied by “a written report that contains additional information regarding the petition, including the relevant terms and conditions of parole, the circumstances of the alleged underlying violation, the history and background of the parolee, and any recommendations.”

 Where, as here, the revocation petition is filed by the prosecutor, a report need not accompany the petition. However, a report is still required. Under section 1203.2, subdivision (b)(1), once the court receives a revocation petition filed by the district attorney, it must refer the petition to the parole agency for a written report, and it must consider that report before ruling on the petition. The statute contains no exception for inmates serving life sentences. Although section 3000.08, subdivision (h) makes revocation mandatory if the court finds a lifetime parolee has violated parole, requiring a report in the case of lifetime parolees is not absurd or pointless. While the court cannot dismiss the petition, it is conceivable that the contents of the report could persuade the district attorney to withdraw the petition. The report also includes other background information that might assist in the trial court's determination whether parole was violated.

 

 The full opinion is available on the court's website here: https://www.courts.ca.gov/opinions/documents/A159914.PDF

Tuesday, January 25, 2022

People v. Jenkins (2021) 70 Cal.App.5th 924 (10/25/21 ): Trial Court erred by not issuing an order to show cause

 A big Thank You and shout out to Central California Appellate Program (CCAP) for their regular Case summaries efforts. Central California Appellate Program (CCAP) is a nonprofit law office, created pursuant to California Rules of Court, rule 8.300(e), serving the Third and Fifth District Courts of Appeal (external links), and dedicated to improving the quality of indigent representation in criminal, juvenile, dependency and mental health appeals. 

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This posting is specific to Penal Code section 1170.95 petition. As a quick review: This statute states that if you have a felony murder conviction under the old law but if tried under the new law, a jury or judge would not have convicted you, then you can petition the court for resentencing.

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People v. Jenkins (2021) 70 Cal.App.5th 924 , District: 4 DCA , Division: 2 , Case #: E075886 

Opinion Date: 10/25/21

 Case Holding:  

Trial court erred by summarily denying Penal Code section 1170.95 petition without issuing an order to show cause because the petition stated a prima facie case for relief and the record of conviction does not refute the prima facie showing. In 2002, a jury convicted Jenkins of second degree murder and kidnapping. The jury also found true a witness-killing special circumstance, which required the jury to find an intent to kill. The trial court struck the special circumstance finding because the jury was only supposed to return a finding if it found Jenkins guilty of first degree murder. 

The Court of Appeal affirmed. In 2019, Jenkins’s section 1170.95 petition was summarily denied. Jenkins appealed. Held: Reversed and remanded with directions to issue an order to show cause. In conducting the prima facie review of a section 1170.95 petition, the court takes the petitioner’s factual allegations as true, unless the record of conviction contains facts refuting them. Jenkins’s petition contained the required factual allegations to make a prima facie showing that he was entitled to relief. The Court of Appeal here reviewed the record of conviction and concluded it does not exclude the possibility that the jury convicted Jenkins under the natural and probable consequences theory. 

Although the sentencing court implicitly found Jenkins acted with intent to kill when applying Penal Code section 654 (and the Court of Appeal determined this finding was supported by substantial evidence on direct appeal), this does not preclude relief because the finding was made by a preponderance of the evidence, not beyond a reasonable doubt. Additionally, the witness-killing special circumstance does not preclude relief because the trial court struck the finding. 

Finally, the jury instruction on the natural and probable consequences doctrine erroneously identified murder as the target offense. But a later paragraph of the instruction told the jurors they did not have to agree unanimously on the target offense, so the instruction as a whole did not necessarily show Jenkins was convicted on a murder theory that is still valid. 

 The full opinion is available on the court's website here: https://www.courts.ca.gov/opinions/documents/E075886.PDF 

 

A big THANK YOU to CCAP  for summarizing the Jenkins case.