Case Name: In re Swanigan , District: 2 DCA , Division: 1 , Case #: B261904
Opinion Date: 9/1/2015 , DAR #: 10193
Great appellate Attorney Rich Pfeiffer pulled this one out for the Lifers!
Rich was under appointment by the Court of Appeal, for Petitioner.
CASE FACTS:
In 1981, a jury convicted Swanigan, then 20 years old, of first degree murder. The jury found that he personally shot Ronald Como on September 10, 1980. The trial court sentenced him to 27 years to life in prison. Except for an admission made at his eleventh (11th) Parole Hearing in 2014 and quickly withdrawn, Swanigan has continuously and consistently maintained that he did not shoot Como.
CASE HOLDING:
Board of Parole Hearings (BPH) erred by denying parole to otherwise suitable defendant because he would not admit guilt. In 1981 defendant was convicted of first degree murder after he was identified as the person who shot the owner of a car repair shop. During 10 parole hearings defendant maintained his innocence. At the eleventh, he briefly admitted the killing but shortly thereafter recanted following a recess during which his attorney told him to tell the truth. Defendant's in-prison conduct was discipline free for a lengthy period and his prior misconduct did not involve violence. His psychological report reflected a low risk of violence and he had parole plans.
The BPH denied parole because defendant lacked insight into his offense and lied briefly to them during the hearing. After the superior court denied his writ petition, Swanigan petitioned in the Court of Appeal. Held: Habeas petition granted. When assessing whether a life prisoner poses an unreasonable risk of danger if paroled, BPH must consider all relevant, reliable information, including the failure to gain insight into the life crime.
However, BPH may not require an admission of guilt to set a parole date (Pen. Code, § 5011; Cal. Code Regs., tit. 15, § 2236). Here, the information in defendant's post conviction record supports a finding that he is rehabilitated and no longer poses a danger to society. The BPH did not articulate a rational nexus between the facts of the commitment offense and current dangerousness, relying instead on defendant's refusal to admit guilt to conclude he lack sufficient insight or remorse. This was error. Even applying a highly deferential standard, i.e., whether "some evidence" supports BPH's denial of parole, there is no evidence in the record that defendant poses a risk of danger if released.
DISPOSITION
The petition for a writ of habeas corpus is granted and the decision of the Board of Parole Hearings is vacated. The Board is directed to conduct a new parole suitability hearing consistent with due process of law and with this decision. (In re Prather (2010) 50 Cal.4th 238, 244.)
Attorney Diane T. Letarte: LIFER Parole Hearings CALL *** 619-233-3688 ***. BLOG Focuses on the Law/News that impacts inmates with LIFE, long-term DSL (SB260 & 261, AB1308, 3X'er, LWOP) Suitability Hearings are governed mostly by Penal Code 3041, et seq. LAWRENCE and SHAPUTIS CA Supreme Court cases are 2008 Landmark cases. 3/4/13, In Re Vicks Reversed by CA Supreme. 2/22/16, Gilman v. Brown was reversed by the 9th Cir. Marsy's Law aka (prop 9, 89) remains Law. Butler reversed
Tuesday, November 3, 2015
Friday, October 9, 2015
SB261 / SB519 passed (crime when under 23 yrs of age) Approved by Governor October 03, 2015.
Just a quick NOTE on SB261: It will be effective January 2016.
Companion SB519, basically extends BPH deadlines by 6 months.
NOTE: SB519 means, ISL must have their YOPH before Dec 31, 2017.
SB519 means, DSL must have their YOPH before Dec 31, 2021.
NOTE2: Be aware Senate Bill 260/261 does not apply to LWOP inmates.
The long awaited Senate Bill 261 was signed by the Governor. It will be effective January 2016. BPH (Board) is gearing up to start these YOPH as of January 2016. This would expand the YOPH to those inmates who committed their crime before 23 yrs of age.
What does that mean to my loved one who is scheduled to go to his Parole Hearing this year (2015), but would qualify under SB261 (in 2016)?
An Inmate can go forward with the 2015 Parole Hearing or opt to Postpone his hearing for 2016. Each SB261 potential case must be looked at individually (case-by-case). The Base TERM (of incarceration) calculation is different if a parole hearing is held under the YOPH vs the regular Parole Hearing law. This is just one (1) of many factors to consider in making a choice. NOTE: BPH is only allowing a 1-year Waiver, not a postponement.
It would be wise to contact an attorney with Youth Offender Parole Hearing experience or Attorney Diane Letarte via email (Office: 619-233-3688.)
CASE and POINT example:
There are advantages and disadvantages in each case, these factors need to be analyzed. Attorney Diane Letarte just received a GRANT of Parole for her client yesterday on 10/8/2015 at Soledad prison. The first question (at the Parole hearing) from the Commissioner was does your client want to postpone, since he qualifies under SB261, effective January 2016. After a private discussion with my client we opted to go forward without taking advantage of the SB261 law. He was 19 years old at the time of the crime.
EVERY CASE IS DIFFERENT and must be analyzed individually to see whether postponing the hearing is the correct strategy.
As stated above: This SB261 is a little different then the SB260 in that the Indeterminate sentenced inmates (ISL) will be brought to a YOPH hearing starting January 2016 and before July 1, 2017. The DSL portion of the SB261 will be effective starting July 1, 2021.
The Determinate Sentenced inmates (DSL) will be given a Consultation hearing by a Commissioner or Deputy Commissioner (DC) to review their Central file and let the inmate know what they should be working on to prepare for their upcoming Youth Offender Parole Hearing (YOPH). The DSL inmates scheduling will basicly be lagging by 5 years before they get their YOPH. The effective date of the bill being July 1, 2021 for the DSL inmates. This delay was mostly enforced because of the SB260 Statistics accumulated during the YOPH under SB260 (2014-2015). Most DSL inmates were not properly prepared for their Parole Hearing (YOPH), thus very few received a grant of Suitability and many resources were exhausted and inmates were frustrated by the high rate of Denial of parole.
REMINDER:
This bill is an expansion of Senator Hancock's bill from 2013, SB 260, which allowed parole hearings for those persons who committed a crime and sentenced to state prison prior to being 18 years old.
Companion SB519, basically extends BPH deadlines by 6 months.
NOTE: SB519 means, ISL must have their YOPH before Dec 31, 2017.
SB519 means, DSL must have their YOPH before Dec 31, 2021.
NOTE2: Be aware Senate Bill 260/261 does not apply to LWOP inmates.
The long awaited Senate Bill 261 was signed by the Governor. It will be effective January 2016. BPH (Board) is gearing up to start these YOPH as of January 2016. This would expand the YOPH to those inmates who committed their crime before 23 yrs of age.
What does that mean to my loved one who is scheduled to go to his Parole Hearing this year (2015), but would qualify under SB261 (in 2016)?
An Inmate can go forward with the 2015 Parole Hearing or opt to Postpone his hearing for 2016. Each SB261 potential case must be looked at individually (case-by-case). The Base TERM (of incarceration) calculation is different if a parole hearing is held under the YOPH vs the regular Parole Hearing law. This is just one (1) of many factors to consider in making a choice. NOTE: BPH is only allowing a 1-year Waiver, not a postponement.
It would be wise to contact an attorney with Youth Offender Parole Hearing experience or Attorney Diane Letarte via email (Office: 619-233-3688.)
CASE and POINT example:
There are advantages and disadvantages in each case, these factors need to be analyzed. Attorney Diane Letarte just received a GRANT of Parole for her client yesterday on 10/8/2015 at Soledad prison. The first question (at the Parole hearing) from the Commissioner was does your client want to postpone, since he qualifies under SB261, effective January 2016. After a private discussion with my client we opted to go forward without taking advantage of the SB261 law. He was 19 years old at the time of the crime.
EVERY CASE IS DIFFERENT and must be analyzed individually to see whether postponing the hearing is the correct strategy.
As stated above: This SB261 is a little different then the SB260 in that the Indeterminate sentenced inmates (ISL) will be brought to a YOPH hearing starting January 2016 and before July 1, 2017. The DSL portion of the SB261 will be effective starting July 1, 2021.
The Determinate Sentenced inmates (DSL) will be given a Consultation hearing by a Commissioner or Deputy Commissioner (DC) to review their Central file and let the inmate know what they should be working on to prepare for their upcoming Youth Offender Parole Hearing (YOPH). The DSL inmates scheduling will basicly be lagging by 5 years before they get their YOPH. The effective date of the bill being July 1, 2021 for the DSL inmates. This delay was mostly enforced because of the SB260 Statistics accumulated during the YOPH under SB260 (2014-2015). Most DSL inmates were not properly prepared for their Parole Hearing (YOPH), thus very few received a grant of Suitability and many resources were exhausted and inmates were frustrated by the high rate of Denial of parole.
REMINDER:
This bill is an expansion of Senator Hancock's bill from 2013, SB 260, which allowed parole hearings for those persons who committed a crime and sentenced to state prison prior to being 18 years old.
For a complete update and tracking - see: http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml?bill_id=201520160SB261
Tuesday, September 1, 2015
SB261 (youth under 23 yrs old) YOPH Bill passes Assembly Floor
*** A
short time ago, SB 261 passed the Assembly floor receiving 42 votes. The bill
now heads to the Governor's office for final consideration.
Senate Bill 261, authored by Senator Hancock (D-Berkeley), which requires the Board of Parole Hearings to conduct parole hearings for those sentenced to state prison for certain crimes when they were under the age of 23. This Expands the current YOUTH PAROLE HEARING (SB260) Bill that previously passes in 2014 for those who committed their crime while under the age of 18 to under the age of 23.
This bill is an expansion of Senator Hancock's bill from 2013, SB 260, which allowed parole hearings for those persons who committed a crime and sentenced to state prison prior to being 18 years old.
Senate Bill 261, authored by Senator Hancock (D-Berkeley), which requires the Board of Parole Hearings to conduct parole hearings for those sentenced to state prison for certain crimes when they were under the age of 23. This Expands the current YOUTH PAROLE HEARING (SB260) Bill that previously passes in 2014 for those who committed their crime while under the age of 18 to under the age of 23.
This bill is an expansion of Senator Hancock's bill from 2013, SB 260, which allowed parole hearings for those persons who committed a crime and sentenced to state prison prior to being 18 years old.
For a complete update and tracking - see: http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml?bill_id=201520160SB261
We need to see of Governor Brown will signed off on it...... STAY tune! Most likely will be effective in January 2016.
*** credit for this information goes to CRIMINAL JUSTICE INFORMATION NETWORK at-->
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