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.

In re Kler 10/5/10 - All courts in California have original jurisdiction on a WHC

In re Kler , District: 1 DCA , Division: 2 , Case #: A128153
Opinion Date: 10/5/2010 , DAR #: 15518

The CA Constitution vests all 3 levels of Court in California with original jurisdiction to file a Writ of Habeas Corpus (WHC), the California Rules of Court is contrary to constitutional provisions.

CASE HOLDING:

California Rules of Court, rule 8.385(c)(2), which requires that a petition for writ of habeas corpus challenging the denial of parole be denied if it is not first adjudicated in the trial court rendering the underlying judgment, is inconsistent with the California Constitution. In 2009, the appellate court granted petitioner’s petition for writ of habeas corpus that challenged a 2007 parole denial. Following a new hearing, the Board of Parole Hearings found petitioner suitable for parole; but in 2010, the Governor reversed. Petitioner then filed the present petition in the appellate court challenging the action by the Governor.

The Governor argued that California Rules of Court, rule 8.385(c)(2), prohibited the appellate court from entertaining the matter in the first instance. The appellate court disagreed.

California Rules of Court have the force of a statute to the extent they are not inconsistent with constitutional provisions. Rule 8.385 states the Court of Appeal must deny a petition challenging a denial of parole that is not first brought in the trial court. Rule 1.5 (b)(1) defines must as mandatory, whereas rule 1.5 (b)(5) defines should as expressing a preference. Because the Constitution vests all courts in California with original jurisdiction, the rule is contrary to constitutional provisions.

Under the Constitution, while a Court of Appeal may have original jurisdiction in a habeas proceeding, it has discretion to deny a petition not first presented to the trial court. “Among the three levels of state courts, a habeas corpus petition challenging a decision of the parole board should be filed in the superior court, which should entertain in the first instance the petition,” subject to a showing that any extraordinary reason exists for action by a different court. (In re Roberts (2005) 36 Cal.4th 575, 593; In re Hillery (1962) 202 Cal.App.2d 293, 294.) This case presented such an extraordinary reason. Since the issues presented flowed from the appellate court’s previous decision, no court would be better suited to hear the matter.

In re Prather 7/29/10 Court defines BOARD's discretion in Court Ordered BPH Hearings

COURT ORDERED HEARING WILL BE MORE SCRUTINIZED specifically as to what remedies will be allowed by the Court and what "evidence" the BOARD will be allowed to review. Time will tell on how this decision actually plays out in reality. Most likely it will not have a major impact on the ultimate success of litigation.

In re Prather, 50 Cal. 4th 238
Cal Supreme Court case# S173269 and S172903

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When a court directs the Parole Board to conduct a new parole-suitability hearing, the court should not improperly limit the type of evidence the board is statutorily obliged to consider. The Supreme Court granted review to settle a split among the appellate courts as to what action a reviewing court could order the Parole Board to take when it grants a new parole-suitability hearing. The court held is improper for the reviewing court to order the board to consider only a limited category of evidence in making its finding. Specifically, the reviewing court should not order the board to consider only new and different evidence that has emerged since the suitability hearing under review. To do so violates the separation of powers doctrine. The board is the administrative agency within the executive branch that is authorized to grant parole, with veto power vesting in the Governor. While judicial review of parole-suitability is proper so that the petitioner has due process, an order limiting the board's discretion as to what factors it can consider on remand "impermissibly impairs the board's exercise of its inherent discretion to decide parole matters."
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The Court reasoned that the Board in performing its statutory duty to evaluate current dangerousness, should be allowed to consider the entire record as it applies at the time of remand. But the Court decreed limitations. If the remanding court makes express findings of fact (e.g., not "some evidence" of danger in psych reports; or not "some evidence" of danger in parole plans), on remand, the Board cannot reconsider these factor However, if "new evidence" has materialized since the prior hearing, the Panel may consider not only that evidence, but also how it interrelates with prior evidence, in reaching its current dangerousness assessment.

Justice Moreno in a concurring and clarifying opinion wrote:
"an order expediting a remedy is not improper, particularly if a previous remand was ordered by the court. If a court is faced with slapping the Board's hands on a subsequent challenge to remanded hearing, then a more drastic intervention, such as an outright order that the Board grant Parole, may be warranted."