Once again the "Governator- Arnold" gets Reversed by the Court who concurred with the Board's original suitability (for a release) recommendation.
We will see what JERRY BROWN will bring to the table for Lifers in 2011.
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In re Twinn, District: 2 DCA , Division: 7 , Case #: B225943
Opinion Date: 11/23/2010 , DAR #: 17681
CASE SUMMARY: (CCAP courtesy)
The Governor's reversal of the board's recommendation for parole required reversal where the petitioner's past minimization of his role in the crime did not support a finding that he was a current danger.
Appellant beat and killed a man who had assaulted his aunt. The coroner testified that while the death was immediately caused by the man's heart disease, the injuries from the beating contributed to the death. Appellant was convicted and sentenced to 15 years to life.
The Governor reversed the parole board's decision to grant parole based on the gravity of the commitment offense, lack of suitable post-release plans, and lack of insight since petitioner's statements in reports filed in 1991, 1995, and 2000 appeared to minimize his involvement in the offense. Appellant had commented that the death was accidental and caused by a heart attack.
Habeas proceedings ensued and the Court of Appeal reversed. The claim of inadequate post-release plans was not supported by some evidence because petitioner had a verified job offer and planned to live with his wife. And while there was a modicum of evidence in the record that appellant initially minimized involvement, the past minimization is not indicative of current dangerousness. Similarly, while there was some evidence to support the finding that the commitment offense was callous and cruel, there is no rational nexus between the offense and petitioner's current dangerousness.
Attorney Diane T. Letarte: LIFER Parole Hearings CALL *** 619-233-3688 ***. BLOG Focuses on the Law/News that impacts inmates with LIFE, long-term DSL (SB260 & 261, AB1308, 3X'er, LWOP) Suitability Hearings are governed mostly by Penal Code 3041, et seq. LAWRENCE and SHAPUTIS CA Supreme Court cases are 2008 Landmark cases. 3/4/13, In Re Vicks Reversed by CA Supreme. 2/22/16, Gilman v. Brown was reversed by the 9th Cir. Marsy's Law aka (prop 9, 89) remains Law. Butler reversed
Thursday, December 2, 2010
Monday, November 15, 2010
In re McDonald, 11/2/2010, Denial of involvement in the commitment offense alone is an insufficient basis for denial of parole
Case Name: In re McDonald , District: 2 DCA , Division: 7 ,
Case #: B219424,
Opinion Date: 11/2/2010 , DAR #: 16815
The Court finally acknowledges that PC 5011 - no need to admit guilt to be found suitable - must play a role at theses Parole Suitability Hearings, to allow inmates to be found suitable when they can not have insight into a crime they did not commit.
CASE SUMMARY:
Denial of involvement in the commitment offense alone is an insufficient basis for denial of parole. Petitioner was convicted of second degree murder in 1999. He was tried as an adult, even though the offense occurred when he was sixteen years old. The conviction was based primarily on the testimony of other juveniles. Petitioner had no prior criminal record or history of school misconduct. He had no problems with alcohol or drugs, and during his prison term he had been a model prisoner. His release plans were realistic and positive.
The board found petitioner suitable for parole in 2006 and 2007, but each time the Governor reversed on the basis of the commitment offense and petitioner’s lack of insight and remorse. Throughout, petitioner had denied committing the offenses. In 2009, the board again found petitioner suitable for parole but the Governor reversed again, finding the aggravated nature of the crime and petitioner’s lack of insight based on his claim of limited responsibility suggested petitioner posed an unreasonable public safety risk.
The appellate court upheld the trial court’s grant of petitioner’s habeas, noting that there was no nexus between the commitment offense and petitioner’s level of dangerousness. Further, pursuant to Penal Code section 5011, subdivision (b), a finding of dangerousness can not be predicated on petitioner’s admission of guilt. Although an inmate’s lack of remorse or insight into the offense can be considered in an assessment as to whether he poses a safety risk, when considered in the context of petitioner’s denial of commission of the offense, it alone is an insufficient basis for a finding that he continues to represent a safety threat.
The court found that, contrary to the People’s position, it was not necessary to remand the matter to permit the Governor to reconsider the record. The Constitution provides for a single review by the Governor of a determination by the board and does not authorize repeated reviews of that single determination. Petitioner, who had since been released on parole, was allowed to remain free from custody.
Case #: B219424,
Opinion Date: 11/2/2010 , DAR #: 16815
The Court finally acknowledges that PC 5011 - no need to admit guilt to be found suitable - must play a role at theses Parole Suitability Hearings, to allow inmates to be found suitable when they can not have insight into a crime they did not commit.
CASE SUMMARY:
Denial of involvement in the commitment offense alone is an insufficient basis for denial of parole. Petitioner was convicted of second degree murder in 1999. He was tried as an adult, even though the offense occurred when he was sixteen years old. The conviction was based primarily on the testimony of other juveniles. Petitioner had no prior criminal record or history of school misconduct. He had no problems with alcohol or drugs, and during his prison term he had been a model prisoner. His release plans were realistic and positive.
The board found petitioner suitable for parole in 2006 and 2007, but each time the Governor reversed on the basis of the commitment offense and petitioner’s lack of insight and remorse. Throughout, petitioner had denied committing the offenses. In 2009, the board again found petitioner suitable for parole but the Governor reversed again, finding the aggravated nature of the crime and petitioner’s lack of insight based on his claim of limited responsibility suggested petitioner posed an unreasonable public safety risk.
The appellate court upheld the trial court’s grant of petitioner’s habeas, noting that there was no nexus between the commitment offense and petitioner’s level of dangerousness. Further, pursuant to Penal Code section 5011, subdivision (b), a finding of dangerousness can not be predicated on petitioner’s admission of guilt. Although an inmate’s lack of remorse or insight into the offense can be considered in an assessment as to whether he poses a safety risk, when considered in the context of petitioner’s denial of commission of the offense, it alone is an insufficient basis for a finding that he continues to represent a safety threat.
The court found that, contrary to the People’s position, it was not necessary to remand the matter to permit the Governor to reconsider the record. The Constitution provides for a single review by the Governor of a determination by the board and does not authorize repeated reviews of that single determination. Petitioner, who had since been released on parole, was allowed to remain free from custody.
Thursday, October 21, 2010
In re Powell 10/7/10 There was not "some evidence" to support BOARD findings of unsuitability
Another Victory for the inmate -
The Board erroneously found Powell to be unsuitable.
Courts sided with the inmate!
In re Powell from District: 1 DCA , Division: 3 , Case #: A127641
Opinion Date: 10/7/2010 , DAR #: 15629
Case Holding:
There was not "some evidence" to support the parole board's conclusion that petitioner currently posed a danger to society if released from prison.
BACKGROUND:
Petitioner found his girlfriend in bed with another man, and he killed them both. In 1982, he was convicted of two counts of second degree murder and the use of a deadly weapon. In 2009, the parole board denied parole concluding the crimes were especially heinous, petitioner's history was unstable in that he used to abuse drugs and alcohol and had an incident of domestic violence with the victim, he lacked full insight, did not accept responsibility, and did not have an adequate post-release plan. Petitioner filed a petition for writ of habeas corpus, which the superior court denied.
COURT OF APPEAL:
The Court of Appeal reversed, finding these reasons did not withstand scrutiny under the standard of In re Lawrence (2008) 44 Cal.4th 1181, which requires "'some evidence' support the conclusion that the inmate would currently pose a danger to society if released." The commitment offenses and petitioner's prior history were too remote to remain valid indicators of present conduct since petitioner had no violent conduct in the past 29 years. Further, lack of insight and acceptance of responsibility are not even among the suitability factors listed in the regulations, although the former can be probative to the extent it is rationally indicative of current dangerousness, and the latter is closely related to the factor of showing remorse.
In this case, petitioner had accepted full responsibility and the alleged claim of lack of insight was not supported by record. As to post-release plans, the board itself characterized them as "well thought out." Because there was not some evidence to support the board's conclusion, the court remanded for reconsideration with all the available evidence, as that is the remedy consistent with In re Prather (2010) 50 Cal.4th 238.
The Board erroneously found Powell to be unsuitable.
Courts sided with the inmate!
In re Powell from District: 1 DCA , Division: 3 , Case #: A127641
Opinion Date: 10/7/2010 , DAR #: 15629
Case Holding:
There was not "some evidence" to support the parole board's conclusion that petitioner currently posed a danger to society if released from prison.
BACKGROUND:
Petitioner found his girlfriend in bed with another man, and he killed them both. In 1982, he was convicted of two counts of second degree murder and the use of a deadly weapon. In 2009, the parole board denied parole concluding the crimes were especially heinous, petitioner's history was unstable in that he used to abuse drugs and alcohol and had an incident of domestic violence with the victim, he lacked full insight, did not accept responsibility, and did not have an adequate post-release plan. Petitioner filed a petition for writ of habeas corpus, which the superior court denied.
COURT OF APPEAL:
The Court of Appeal reversed, finding these reasons did not withstand scrutiny under the standard of In re Lawrence (2008) 44 Cal.4th 1181, which requires "'some evidence' support the conclusion that the inmate would currently pose a danger to society if released." The commitment offenses and petitioner's prior history were too remote to remain valid indicators of present conduct since petitioner had no violent conduct in the past 29 years. Further, lack of insight and acceptance of responsibility are not even among the suitability factors listed in the regulations, although the former can be probative to the extent it is rationally indicative of current dangerousness, and the latter is closely related to the factor of showing remorse.
In this case, petitioner had accepted full responsibility and the alleged claim of lack of insight was not supported by record. As to post-release plans, the board itself characterized them as "well thought out." Because there was not some evidence to support the board's conclusion, the court remanded for reconsideration with all the available evidence, as that is the remedy consistent with In re Prather (2010) 50 Cal.4th 238.
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