From Casetext: Smarter Legal Research

Davis v. Superior Court of Marin County

Court of Appeals of California, First District, Division Four.
Nov 13, 2003
No. A104227 (Cal. Ct. App. Nov. 13, 2003)

Opinion

No. A104227.

11-13-2003

GRAY DAVIS, as Governor, etc., Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; STEPHEN OCONNELL, Real Party in Interest.


THE COURT:

Kay, P.J., Reardon, J., Rivera, J.

We now make explicit what was implicit in this courts prior order granting the Governors petition for writ of supersedeas: Real party in interest Stephen OConnell shall remain in the custody of the California Department of Corrections pending the resolution of the appeal in In re Stephen OConnell, A102980.

BACKGROUND

OConnell is serving a term of 15 years to life for second degree murder. In 2002, the Board of Prison Terms found OConnell suitable for parole. Governor Gray Davis reviewed the Boards decision and reversed it. (See Cal. Const., article V, § 8, subd. (b); Pen. Code, § 3041.2.)

Although both OConnell and the Governor have referred to matters in the record in appeal A102980, neither has formally asked this court to consider that record. (See Cal. Rules of Court, rules 10(b) [incorporation by reference], 12(a) [augmentation], 22(a) [judicial notice].) We will treat the partys reference to matters in that record as a request to augment the record and grant it.

OConnell filed a petition for writ of habeas corpus in respondent Superior Court of Marin County. OConnell asserted several grounds for overturning the Governors denial of parole.

The superior court issued an order to show cause, and after considering the arguments of the parties, ordered the Governor to reconsider his decision reversing the grant of parole. The court was "confident" that when the Governor did so, he would find OConnell suitable for parole.

The People appealed from the superior courts order and applied for a writ of supersedeas in order to stay the superior courts order. This court imposed a stay while it sought opposition from OConnell. After receiving and considering the opposition filed by OConnell, we granted the petition for writ of supersedeas. Our order stated: "The stay of the superior courts order directing the Governor to vacate his decision regarding the parole of Stephen OConnell, filed May 23, 2003, shall continue pending the resolution of the appeal in A102980."

OConnell unsuccessfully sought review of our order in the California Supreme Court. He then returned to the superior court and applied for release on his own recognizance or on bail. The superior court concluded it had jurisdiction to entertain such an application and granted it. The court ordered the Department of Corrections to release OConnell on his own recognizance.

The Governor returned to this court with the instant petition for writ of prohibition and/or mandate. We stayed the order directing the release of OConnell and asked for opposition from OConnell. We notified OConnell that we were considering the issuance of a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) OConnell has filed his opposition, and after reviewing it, we conclude the issuance of a peremptory writ in the first instance is appropriate, as this matter does not require us to resolve any legal questions or to consider any disputed facts. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1259-1260.)

DISCUSSION

We recognize our order did not explicitly state, "Stephen OConnell shall not be released while we consider the Governors appeal." But we thought it was clear from our order that this court had assumed jurisdiction over the question of whether OConnell should be released, on parole or otherwise. We reject OConnells argument that his release was an "ancillary" or "incidental" matter that was not within the scope of this courts assumption of jurisdiction.

Whether the superior court would have had the power to order OConnells release absent a stay from this court presents an interesting question. The superior court cited Penal Code section 1476 as authority for ordering OConnells release. That section provides for the release on bail of a person "detained upon a criminal charge" who has applied for a writ of habeas corpus. It does not appear to apply here. (See In re Law (1973) 10 Cal.3d 21, 26 [section 1476 does not contemplate bail from restraints imposed after finality of a judgment of conviction].) More pertinent is section 1506, which does discuss bail when there is an appeal from an order granting relief sought in a petition for writ of habeas corpus. Arguably, that section would not have aided OConnell. (See In re Stinnette (1979) 94 Cal.App.3d 800, 806-807 [order directing release on parole is not an order granting a discharge or release from custody so it cannot serve as basis for bail under section 1506].)

Under the state Constitution the ultimate decision on whether to grant or deny parole to a life prisoner rests with the Governor. (Cal. Const., article V, § 8, subd. (b).) Although the Governors exercise of that power is not unfettered, the Governors decision is subject to "limited judicial review," (In re Rosenkrantz (2002) 29 Cal.4th 616, 626), under the "extremely deferential" some evidence standard (id. at p. 665). Given the limited role the courts play in the parole decision-making process, the Governors conclusion that a prisoner is not suitable for parole (i.e., that the prisoner is not suitable for release into the community) is not to be treated lightly. Absent extraordinary circumstances, the Governors decision should not be disregarded while judicial review is ongoing.

We have no reason to believe the superior court acted in defiance of this courts stay order. We therefore conclude our order should have been more explicit.

DISPOSITION

Let a peremptory writ of mandate issue directing the superior court to vacate its order of October 9, 2003, which directed the California Department of Corrections to release OConnell on his own recognizance. OConnell shall remain in the custody of the Department of Corrections pending the resolution of appeal A102980.


Summaries of

Davis v. Superior Court of Marin County

Court of Appeals of California, First District, Division Four.
Nov 13, 2003
No. A104227 (Cal. Ct. App. Nov. 13, 2003)
Case details for

Davis v. Superior Court of Marin County

Case Details

Full title:GRAY DAVIS, as Governor, etc., Petitioner, v. THE SUPERIOR COURT OF MARIN…

Court:Court of Appeals of California, First District, Division Four.

Date published: Nov 13, 2003

Citations

No. A104227 (Cal. Ct. App. Nov. 13, 2003)