Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 70114
ORDER MODIFYING OPINION NO CHANGE IN THE JUDGMENT
Duffy, J.
THE COURT
It is hereby ordered that the opinion filed July 22, 2010, be modified as follows:
On page 2 – please delete the second full paragraph beginning with “Like the trial court...” and replace it with the following paragraph:
Like the trial court, we conclude that the factors cited by the Governor in his reversal of the Board’s parole grant are not supported by some evidence in the record and they are therefore not probative of Williams’s current dangerousness. The decision thus fails to comport with Lawrence’s requirement that it articulate a factual nexus supporting such a finding. But under the circumstances presented here, the Governor should be provided the opportunity to review the Board’s grant of parole in light of Lawrence and Shaputis. We accordingly affirm the court’s grant of habeas relief and remand the Board’s reinstated grant of parole for gubernatorial review within 30 days in accordance with due process as directed by Lawrence and Shaputis.
On page 42 – please delete the first full paragraph beginning with “On the other hand...” and replace it with the following paragraph:
On the other hand, Williams contends that we should affirm the trial court’s order to the extent it reinstated the Board’s grant of parole but we should eliminate any opportunity for remand to the Governor. But given that the Governor’s decision predated Lawrence and Shaputis, the proper remedy under the circumstances is to reinstate the Board’s grant of parole and remand to the Governor to conduct a new review if the Governor so chooses.
On page 42 – At the end of the second full paragraph beginning with “ We will however...” please add the following:
And we further note that on remand, the Governor is bound by our findings and conclusions regarding the evidence in the record and that for the reasons stated, the evidence cited by the Governor in support of his reversal does not, standing alone, constitute some evidence of Williams’s current dangerousness such that he is unsuitable for parole. (In re Prather (2010) __ Cal.4th __, __ [2010 Cal.Lexis 7288, *39]; see also conc. opn. of Moreno, J. at p. ____ [*41].) In other words, on remand, the Governor will not be entitled to “ ‘disregard a judicial determination regarding the sufficiency of the evidence [of current dangerousness] and to simply repeat the same decision on the same record.’ [Citation.]” (Prather, supra, at p. ___ [*39].)
There is no change in the judgment.
The petition for rehearing is denied.
Mihara, Acting P.J., McAdams, J.