In re Ryner 6/10/11: Prior Board decision are NOT suff. evidence to Reverse Grant

Another win for the Lifers! The Governor can not reverse a finding of Suitability by reaching back to a Prior Board's decision to find evidence for the reversal.


Case Name: In re Ryner , District: 6 DCA , Case #: H035893
Opinion Date: 6/10/2011 , DAR #: 8563

Case Holding:
Prior Parole Board decisions are not independent evidence sufficient to support the Governor's current reversal of the Board's finding of parole suitability. At the 2009 parole suitability hearing, the Board of Parole granted petitioner parole. The Board noted that although a 2008 psychological evaluation called for petitioner's further exploration of issues that resulted in the commitment murder offense, petitioner had since addressed these issues.

The Governor, referencing prior Board findings as to the nature of the commitment offense, the 2008 psychological evaluation addressing petitioner's lack of insight into motivation for the murder, and petitioner's failure to avail himself of programs, reversed the Board's ruling, finding appellant continued to represent a threat to public safety.

The appellate court agreed with the superior court's rejection of the Governor's basis for finding petitioner unsuitable for parole. In conducting its review of the Board's decision, the Governor is required to consider the same factors considered by the Board and the opinions of previous Board decisions do not constitute independent evidence of petitioner's suitability for parole.

Remand to the Governor for further action was not a proper remedy in this case because the court's review of the record before the Board and the Governor produced no evidence that would support any action other than petitioner’s release on parole.

In re Nguyen 5/23/11 Governor Reversal using Psych eval - not supported by evidence

In re Nguyen, G043844

Another big win for the inmates. Governor can not find fault in the Psychological evaluation and expect that fault to be considered "some evidence" to support a reversal!!!

District: 4 DCA, Division: 3,
Opinion date: 5/23/11, DAR#: 7391

Case facts summary:

The Governor's decision reversing a Board decision for release on parole must be supported by evidence in the record, but it is not supported by finding fault with the extent of examination done by a mental health evaluator in reaching the conclusion that the inmate had insight into his offense.

In 1990, petitioner in the underlying matter, Hank Nguyen, murdered his former girlfriend, Tina Tham, who had broken off their relationship eight months earlier. On June 28, 1991, after the jury convicted Nguyen of murder, the court sentenced him to 15 years to life in state prison.

Nguyen entered prison with no prior juvenile or adult criminal record, except the current offense for which he has accepted full responsibility and expressed sincere remorse. In prison, he successfully completed a panoply of courses to strengthen his mind and skills and increase his self-insight. He was discipline free during his entire incarceration, and kept himself busy working as a plumber and providing math tutoring to other inmates. The Board found Nguyen‟s institutional behavior “remarkable” and commented it could not “have asked for any more compliance or improvement.” Apparently brushing aside Nguyen‟s accomplishments, the Governor found fault with a mental health evaluator for not exploring more about the cause of defendant‟s behavior.

Decision summary The Board of Parole Hearings (the Board) found Nguyen suitable for parole in June 2009. The Governor reversed the Board‟s decision, finding the crime “extraordinar[ily] callous, heinous and atrocious,”. The Board also found that Nguyen had not fully accepted responsibility for the murder or developed a sense of genuine remorse.

The judgment of the trial court granting habeas relief is affirmed where the absence of a psychological evaluation does not amount to some evidence that petitioner currently poses an unreasonable threat to the public if released from prison.

In re Vicks 5/11/2011 - Marsy's Law Violates Ex Post Facto Principle - Big Win for Lifers!

In re Vicks (2011) , Cal.App.4th
[No. D056998. Fourth Dist., Div. One. May 11, 2011.]

Click here for the latest on In re Vicks  (Prop. 9 Marcy's Law challenge)

OPINION
McDONALD, J.-
In 1983, Michael Vicks was convicted of two counts of rape in concert, two counts of forcible oral copulation in concert, three counts of kidnapping, one count of kidnapping to commit robbery, and multiple counts of robbery; many of these convictions included true findings on appended firearm enhancements. Vicks was sentenced to a total term of 37 years 8 months to life. Vicks, now 51 years old, has been incarcerated for more than 28 years.
At Vicks's first parole hearing, the Board of Parole Hearings (BPH) found him unsuitable for parole. The BPH found the commitment offense was particularly egregious under many indices and, considering numerous other factors (including Vicks's prior criminal record, his disciplinary record while incarcerated, his failure to gain insight into the commitment offense, and his psychological evaluation), concluded Vicks was not currently suitable for parole. The BPH further concluded a five-year denial of parole was appropriate under the circumstances.
Vicks petitioned the trial court for a writ of habeas corpus, but the court denied the writ, concluding the BPH's decision was supported by some evidence. Vicks then petitioned this court for a writ of habeas corpus. We issued an order to show cause, the People filed a return, and Vicks filed a traverse.
Vicks asserts the BPH's decision to deny parole violated due process because its conclusion that he posed an unreasonable risk of danger to society if released on parole was contrary to the only reliable evidence that he was not currently dangerous. He also asserts the imposition of a five-year deferral, pursuant to the amendments to Penal Code section 3041.5, subdivision (b), adopted after the voters approved Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law" (hereafter Marsy's Law), cannot be applied to him without violating ex post facto principles.
We conclude the BPH's decision to deny parole was supported by some evidence, pursuant to the guidance provided by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241.

We also conclude application of the amendments to Penal Code section 3041.5, subdivision (b), to inmates whose commitment offense was committed prior to the effective date of Marsy's Law violates ex post facto principles.