In re Shaputis (II) 12/29/11 - Difficult case for LIFERs

Case Name: In re Shaputis (II) , CalSup , Case #: S188655
Opinion Date: 12/29/2011 , DAR #: 18585

Although the case is not very favorable to the Lifers there is a very good concurring opinion from Justice Liu, J. that almost sounds like a dissent, thus, giving golden nuggets of advice. See the short extract below:

CONCUR BY: Werdegar; Chin; Liu

The emphasis on judicial deference is part of the court's effort to summarize the principles governing judicial review of parole decisions. Because today's opinion focuses on the obligations of reviewing courts, I think it useful and complementary to summarize a few principles governing the Board's obligations as well.

As we have repeatedly said, the parole statute and regulations put the onus on the Board to justify denial of parole: " '[T]he governing statute provides that the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction. (Pen. Code, § 3041, subd. (b).) And as set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment after considering the circumstances enumerated in section 2402 of the regulations, that the prisoner is unsuitable for parole. Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.' (Rosenkrantz, supra, 29 Cal.4th at p. 654, [*60] italics added; see also In re Smith (2003) 114 Cal.App.4th 343, 366 ['parole is the rule, rather than the exception'].)" (Lawrence, 44 Cal.4th at p. 1204.)

In light of this basic statutory obligation to grant parole unless public safety is at risk, we have held that the Board, as a matter of due process, has a duty to provide "a definitive written statement of its reasons for denying parole." (In re Sturm (1974) 11 Cal.3d 258, 272.) The requirement of a definitive written statement of reasons serves two functions.

First, it serves to "adequately inform the inmate" of the reasons for the denial (ibid.) so that the inmate is given a fair opportunity to make the life changes necessary to be considered suitable for parole in the future.

Second, the requirement fulfills the "mandate that a basis for administrative action must be set forth with sufficient clarity as to be understandable" so as "to afford an adequate basis for judicial review." (Ibid.) Although the Board is not required to "comprehensively martial the evidentiary support for its reasons" (maj. opn, ante, at p. 24, fn. 11), it is required to point to evidence in the record that supports its reasoning. Otherwise, the statement of reasons would be conclusory and would fail to concretely inform the prisoner and the reviewing court of the Board's decision-making process.

The Board's obligation to provide a definitive written statement of reasons for denying parole shapes the nature of judicial review. As we said in Lawrence, the task of reviewing courts is to "determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety" (Lawrence, supra, 44 Cal.4th at p. 1213) and specifically to determine whether the Board's or the Governor's decision includes "reasoning establishing a rational nexus" between identified unsuitability factors and current dangerousness (id. at p. 1210).

In other words, the focus of judicial review is on the rationality of the Board's or the Governor's decision-not only the ultimate conclusion of current dangerousness - but also the evidence and reasoning on which the Board or Governor actually relied to reach that conclusion


Case Holding:

The Court of Appeal erred in re-weighing the evidence relied upon by the executive branch when it found petitioner unsuitable for parole.

Petitioner was convicted of the second degree murder of his wife in 1987 and sentenced to 15 years to life, plus two years for a gun use. The Governor's reversal of petitioner's 2006 grant of parole was reversed by the Court of Appeal.

On review the Supreme Court found the question in determining suitability for parole is whether the inmate currently poses a public safety threat. This issue is directed to the executive branch -- first to the BPH and then to the Governor, who may review the entire record in evaluating the inmate's progress during incarceration.

The inmate's insight into the life crime is a relevant factor in determining current dangerousness. An inmate's decision not to participate in the parole hearing or psychological evaluations prepared for the hearing may not be held against him, but such lack of involvement does not limit the BPH or the Governor in their evaluation of the evidence.

A court reviewing a parole determination must employ the highly deferential "some evidence" standard, which requires it to uphold the executive branch's decision as long as there is a "modicum of evidence" to support the parole suitability finding. The question whether the inmate is currently dangerous is reserved to the executive branch. The reviewing court is not authorized to reweigh the evidence -- it must uphold the parole suitability finding if "there is a rational nexus between the evidence and the ultimate determination of current dangerousness." Reversed.

In re Lira 12/6/2011: Entitled to credit to reduce his parole term

Case Name: In re Lira , District: 6 DCA , Case #: H036162
Opinion Date: 12/6/2011 , DAR #: 17446

In Short:
Due to the Governor's erroneous reversal of the Board's grant of suitability, the inmate is entitled to credit for days of unlawful imprisonment to reduce his parole term!

Case Holding:
A lifer inmate held in prison following the Governor's erroneous veto of the Board of Parole Hearing's order for his parole release is entitled to reinstatement of the Board's order and credit for days of unlawful imprisonment to reduce his parole term. Johnny Lira was released from an indeterminate life sentence for a murder committed in 1980, after he had been found unsuitable by the Board in 2005 and suitable in 2008, with that order vetoed by Governor Schwarzenegger.

In 2009, the Board again found Lisa suitable for parole and Governor Brown declined to review the decision. In habeas proceedings, Lira claimed four years of credit for the period of incarceration after the Board's 2005 denial, and for his further incarceration caused by the Governor Schwarzenegger's veto. The trial court granted habeas relief with credit after the 2005 denial.

The appellate court partially disagreed, finding that imprisonment was lawful until the 2008 suitability finding and credit allowed only from the date of veto. The Governor's decision was not supported by "some evidence" and was erroneous. The reversal of the Governor's veto and reinstatement of the Board's finding establishes that the inmate should not have been incarcerated beyond the Board's original 2008 suitability finding. Thus, the appellate court gave credit from the 2008 original Suitability year.

(Note: Penal Code section 3000.1, providing that a person convicted of murder after January 1, 1983 is subject to a lifetime of parole and service of five continuous years on parole prior to discharge, did not apply in this case.)

Irregularities in OAL approval of Section 2240 of Title 15 Forensic Assessment Division (FAD)

While the OAL approved the change to section 2240 of Title 15 regarding the Forensic Assessment Division (FAD) and psych evals, there were some irregularities in this approval and Life Support Alliance (LSA, 916-402-3750), in conjunction with legal advisers, is contemplating a challenge to the approval. Opinions/thoughts from the legal minds is requested by Vanessa Nelson at lifesupportalliance@gmail.com.

OAL's approval of 2240 changes became effective Nov. 24, 2011, thus codifying the Forensic Assessment Division and psychological evaluations. These amendments imply that the LIFER inmates will be mandated to present themselves (among others) at the Forensic Psychological Evaluation interview that is normally done before a LIFER Parole Suitability Hearing is completed.

In addition, BPH in its Revised Initial Statement of Reasons to its proposed amendments misrepresented Psychologists participation and conclusions. No consensus was ever reached about 'state of the art,' risk assessment instruments.The three (3) actuarial instruments used have not been validated with the LIFER population.

=========================
Dr. Barry Krisberg Berkeley Law school states:

It has come to my attention that the Board of Parole Hearings, in its Revised Initial Statement of Reasons to its Proposed Regulation 15 CCR §2240, has misrepresented my participation in a meeting with the Board on August 2, 2006. According to the Statement of Reasons, "the Board of Parole Hearings convened a meeting of experts from the forensic scientific community," including myself, "to reach a consensus, based on the 'state of the art,' what risk and needs assessment instruments would best be employed by the State of California for adult inmates sentenced to a life term with the possibility of parole."

The Board's Statement of Reasons appears to imply that this panel reached such a consensus and agreed that a battery of risk assessment tools should be administered to term-to-life prisoners. The Board states, "The panel determined that the two best objective risk assessment tools to employ on the population of adult inmates sentenced to a life term with the possibility of parole were the Level of Service/Case Management Inventory (LS/CMI) and the HCR‐20 (Historical, Clinical, and Risk Management). Both the LS/CMI and HCR‐20 would be administered to the inmate as part of the risk assessment battery."

This is a misrepresentation of the meeting that I attended; the panel reached no such consensus, and I continue to disagree with the administration of these risk assessment tools to term‐to‐life prisoners. Neither the LS/CMI nor the HCR‐20/PCL‐R has been validated for a population such as California's term‐to‐life prisoners.
=======================

There were many issues raised in objection to this Amendments and they were not answered. There is a consensus (by the criminal defense attorneys, among others) that this OAL approval was improperly done.

If you are a defense attorney representing an inmate at their LIFER Parole Hearing be mindful of this new Section 2240 Amendment and all of its impact if you chose to advise your client not to attend the Psychological interview. If you are not an Attorney, please Consult an Attorney that emphasizes representation in this area of law.