Gilman v. Brown (2/22/2016): Reverse the District Crt & finds Marsy's Law P9 & P89 still valid.

The long awaited GILMAN Decision from the Oral Argument that presented last Summer 2015.
See GILMAN  (2/22/2016)  Decision at Attorney Letarte's website

Gilman v. Brown (2/22/2016)     2016 U.S. App. LEXIS 3035
Plaintiff: (The Inmates) Monica Knoxx (argued), et al. She presented a very good Oral argument last year at the 9th Circuit in San Francisco, California;  WATCH 2015  Oral argument.

Defendants: (The People) Defendant: Christopher John Rench (argued) and Maria G. Chan, Deputy Attorneys General, California Department of Justice, Sacramento, California, et al.

Circuit Judges were Lawrence K. Karlton, Senior District Judge, Presiding Before: Susan P. Graber, Consuelo M. Callahan, and Carlos T. Bea. 

Short Summary: Changes to California's parole system through Prop 89 and Prop 9 did not result in ex post facto violations.Thus, Marsys' Law (aka Prop 9) is still valid law as is P89, the 1988 Governor's veto power to reverse the Board of Parole Hearing's decision. 

Prior District Court's Bench Trial was REVERSED:
After a bench trial, the district court found in favor of the plaintiffs. As to the class members who were convicted of crimes committed before the passage of Proposition 89, the district court enjoined the Governor from imposing a longer sentence than that required by application of the same factors the Board of Parole Hearings is required to consider. The district court further ordered the Board of Parole Hearings, after denying a class member parole, to schedule that inmate’s next parole hearing according to the deferral
periods in place before the passage of Proposition 9.

BOTTOM LINE: The 9th Circuit Court reversed the District Court's decision that was previously favorable to the inmates. The panel reversed the district court’s bench trial judgment and remanded with instructions to enter judgment for the State of California in an action brought by California inmates under 42 U.S.C. § 1983 seeking to stop the application of Propositions 89 and 9, which had amended the State’s Constitution and Penal Code as it relates to the parole system.

PROP 9: MARSY'S LAW
The 9th Circuit Decision  goes through some great mental gymnastic to state that the District Court applied the wrong standard, it committed legal error, and the resulting factual findings are clearly erroneous. Basically stating that the statistics and anecdotes derived from the Rutherford litigation, are irrelevant in part because those (pre-prop9) inmates could have been granted a hearing via the PTA procedure. 9th Circuit goes on to say that any suggestion that Proposition 9 created a significant risk of lengthened incarceration for those inmates is thus just conjectural!

PROP 89: GOVERNOR'S VETO POWER
The 9th Cir. states that the district court did not point to evidence that Governors had reversed the Board other than on the basis of the same factors which the parole authority is required to consider.  Cal. Const. art. V, § 8(b). Nor did Gilman offer evidence showing that he would have received parole before the enactment of Proposition 89, and that Proposition 89 changed that result. Therefore, Proposition 89 remains only a transfer of decision making power, which does not violate the Ex Post Facto Clause.

STAY TUNED: After communication with Monica Knox  (Federal Defender for Inmates)- it appears she will petition for a rehearing En Banc on both the P9 and P89..... and possibly Appeal to the U.S. Supreme Court on any of the viable claims.        GO get them Monica!

What are SB 261 Notices (CDC-128): ELIGIBILITY for Youth Offender Parole Hearing

Attorney Letarte's Law Office (619-233-3688) is continuously getting questions (letters and phone calls) from Lifers (ISL) and  from long-term Determinate (DSL) sentenced inmates as well as their Family Members and Friends regarding the SB 261  inmate NOTICE (CDC-128).  CDCR Counselors are not always providing an explanation to the inmate regarding the meaning of the Notices. Hopefully this BLOG will answer some questions.

What the Heck does the SB 261 Notice (CDC-128) memo mean?

If an inmate receives a NOTICE indicating that s/he qualifies for a Youth Offender Parole Hearing (YOPH), it is NOT an indication that they will be going to a Parole Hearing - right away. There are several factors to look for in a SB261 Qualification, the age is the primary determinate but NOT the only trigger to schedule a parole hearing. REMEMBER: Under the YOPH laws minimum terms must be served, for both ISL and DSL. (see Attorney Letarte's inmate Blog on SB260)  

Two key terms are the Minimum Eligible Parole Date (MEPD) and the Youth Parole Eligibility Date (YPED):
YPED =  Minimum time served, based on SB261 law.
MEPD =  Minimum time served (Lifers), based on Laws @ time of Life offense.

YPED will trump the MEPD and MAY bring the (YOPH) inmate to a parole hearing before the MEPD.

SB 519 (companion to SB261) require** that :
  a) ISL inmates are to be provide a hearing before  December 31, 2017
  b) DSL inmates are to be provided a hearing before December 31, 2021
 
** If the inmate become newly eligible for a parole hearing for the first time on January 1, 2016, as a result of   SB261 (i.e. offense committed under 23 y.o.)  In plain English it means --> those inmate who have met the Minimum served requirements, will have a hearing on or before the date stated above.

Parole Hearings vs. Consultation Hearings (aka Doc Hearings)

Some inmates are getting confused between a Parole Hearing and a Consultation Hearing. A Consultation Hearing is required and must be completed usually within a certain time frame.Consultations are held during the sixth year prior to the inmate’s minimum eligible parole date (MEPD), youth parole eligibility date (YPED), or elderly parole eligibility date (EPED), whichever occurs first. (Pen.Code §3041(a).)

 
 Below is a short definition of the 2 processes:

PAROLE SUITABILITY HEARINGS:
 All Lifer (ISL) inmates are required to go through the Board Of  Parole Hearings (BPH) to determine if they are Suitable to be release in the Free community. Lifers have no guarantee of a release UNLESS they are granted Parole by the Commissioners at a hearing. This is an Administrative hearings, normally 2 to 3 Commissioners form the hearing Panel. The inmate is usually present (at the hearing) with their Defense Attorney and the DA may (or not) attend in-person, via telephone, or video conference. Victims or their next of kin may attend the hearing and usually oppose the release. The inmate's family are not usually allowed to attend UNLESS they were the victim of the commitment offense. After 2-4 hours of discussions with evidence presented during the hearing, the Commissioner will deliberate and provide a Decisions at the end of the Hearing whether to Grant or Deny Parole. If not granted Parole then, the Denial is based on Marsy's law, thus ranging from 3, 5, 7, 10, 15 years.

 
CONSULTATION HEARINGS: 
On the other hand, a Consultation Hearing  is attended by only one (1) Commissioner and the inmate, no attorneys are allowed. It is not a process to grant or deny parole but only a process to provide information to the inmate about the Parole Process. The Board (BPH) is required to provide the inmate information about the parole hearing process, legal factors relevant to his or her suitability or unsuitability for parole, and individualized recommendations for the inmate regarding his or her work assignments, rehabilitative programs, and institutional behavior. (Pen. Code §3041(a).)

BOTTOM LINE: If the inmate is going to a Consultation Hearing he may hire an attorney for a private attorney Consultation BEFORE attending the Consultation hearing but the Attorney is not allowed at the Commissioner Consultation with the inmate. The attorney is definitely required at the Parole Hearing, but it is still the option of the inmate to waive Attorney representation at the Parole Hearing. It is NOT recommended to go to a Parole Hearing without an experienced Parole Hearing Attorney. 


If you have question -->  Attorney Letarte (619-233-3688) has been doing Parole Hearing Representation for over 15 years and is well versed in all the new laws on same.

In re Charles Riley (12/3/15): Court overrules Governor's reversal of Board's parole grant

In re Charles Riley (12/3/15)  (Marin County Super. Ct. No. SC181491A) A145041
In the Court of Appeal of State of Ca. 1st Appellate District, Division 2

This case just came down in December, overruling the Governor's reversal of the Board's parole grant for Charles Riley down since 1976.  The decision was issued one day after oral argument (Yes!), and is effective immediately. 

LEGAL BEE corner:
Unfortunately the case is Not published (thus, can not be cited), but it is still good reading (See Justice Kline, of the 1st DCA).  Michael Satris (Prison Law extraordinaire Attorney) was the Appointed Counsel.  Basis of the decision? SURPRISE SURPRISE --->  No evidence supporting the Governor's conclusion.

FACTS SUMMARY: 
Charles Riley, a life prisoner, appeals from the Governor’s reversal of the decision the Board of Parole Hearing (Board) granting him a parole date. Riley was in 1976 convicted of first degree murder of the parents of his then girlfriend, Marlene Olive. He was originally sentenced to death, but while his case was on appeal, the California Supreme Court declared the statutory death penalty scheme unconstitutional (Rockwell v. Superior Court (1976) 18 Cal.3d 420) and the Court of Appeal modified petitioner’s sentence to 25 years to life on each count, said terms to run concurrently. Riley’s minimum eligible parole date was set at seven years, June 27, 1982. He has now been incarcerated for more than 40 years.

ISSUES:
Riley claims the Governor’s reversal of the Board’s grant of parole in 2014 is not supported by any evidence and an abuse of discretion. A sub-issue was that the Board’s increase of the interval for parole consideration after a Governor’s reversal from 12 months [after the last Board hearing] to 18 months was an Arbitrary infringement of Riley’s right to an annual parole consideration (because he was sentenced under the Indeterminate Sentence Law) that violated his federal and state constitutional rights to due process and to be free of ex post facto punishment.


HOLDING:
MAIN ISSUE: The Court agreed and vacated the Governor's reversal. vacate the Governor’s decision, grant Riley’s petition for writ of habeas corpus, and direct the Board to release Riley pursuant to the conditions set forth in its decision of September 19, 2014, granting him parole and setting a release date.

DISPOSITION:
The Governor’s decision reversing the Board decision granting Riley parole is
vacated. Riley’s petition for habeas corpus is granted. The Board’s grant of parole is
reinstated and the Board is directed to conduct its usual proceedings for release on parole.
(In re Lira (2014) 58 Cal.4th 573, 582.)

Considering that, according to the Board, Riley’s adjusted base term (24 years), increased by aggravating factors and enhancements11 and reduced by his total postconviction and pre-prison credits (12 years and 7 months), entitled him to a July 1, 1987, “release date,” which was more than 28 years ago, this opinion shall in the interests of justice be final as to this court immediately. (Cal. Rules of Court, rule 8.387(b)(3)(A).)