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

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.

WINNER of the 2021 Scholarship from the Law Office of Diane T. Letarte hails out of CTF: The Winner gets a PRO BONO 2022 Parole Hearing representation

In the last several months, our law office was running a Parole Hearing Scholarship Essay competition for any inmate to win a Pro Bono Parole Hearing Representation by Attorney Diane T Letarte. This was available throughout the 35 California State Prisons, as posted in the Prison Newsletters that endorsed our Scholarship. The two Newsletters were:  ECC and POSSE as described below.

Attorney Diane T. Letarte spent several days reading all the Essays that were turned in and grading them on a 1 to 10 scale: 10 being the Best Essay. The grades ranged from 3.5 to 9.0 out of a 10 point grading system. The essays reflected different level of self-introspection in the responses by the inmates. We do not have authorization yet to post the NAME of the Winner (at the writing of this BLOG) but we provide the following results based on Prison Location, admission date, and their current age.

PRIZEs: 

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

2nd and 3rd place winners will 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 will get our Law Office complimentary 2022 Wall Calendar to keep track of all their important dates.

PAROLE HEARING 2021 SCHOLARSHIP RESULTS 

 1st  Place WINNER from  Correctional Training Facility (CTF) State Prison,

        He 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

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

       He 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

 

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

       He was admitted in March 2009 and is currently 43 years old.

       His Parole Eligible Date was 10/2021; Has his Initial Board Hearing in  2022

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Any Long-Term Offenders had a chance to enter the 2021 Parole Hearing Scholarship by writing before the 12/17/2021 envelope post-date deadline to: 

 Law office of Diane Letarte  

Attn: Scholarship 

1080 Park Blvd., Suite 1008 

San Diego, CA 92101 

 We may entertain doing a 2022 Scholarship next year depending on the availability of the Attorney. 

Please keep your eyes open for the next 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                                           POSSE
            P.O. Box 5010                            P.O. Box 900188
            Irvine, CA  92619                       Palmdale, CA  93590
 

 

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The OLD 2021 CRITERIA for the Scholarship Application WAS as stated below. One can anticipate similar criteria for any potential future 2022 Parole Hearing Scholarship.

     1) No CDC-115 (RVRs, since 2018) 

     2) Parole Hearing scheduled date must fall between 3/15/2022 and 5/15/2022 

     3) Psychological Evaluation (aka CRA) risk rating is either a Low or a Moderate 

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

    5) Deadline to return scholarship application, postmarked on or before 12/17/21 new