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In re Barlow

California Court of Appeals, Fourth District, First Division
Feb 24, 2011
No. D057540 (Cal. Ct. App. Feb. 24, 2011)

Opinion


In re DONALD BARLOW on Habeas Corpus. D057540 California Court of Appeal, Fourth District, First Division February 24, 2011

NOT TO BE PUBLISHED

San Diego County Super. Ct. No. CR64538

HUFFMAN, J.

Petition for writ of habeas corpus. Judicial notice granted; petition dismissed.

Until January 2011, Donald Barlow was incarcerated for more than 26 years for his commitment offense, the 1983 second degree murder of Belinda Burwell. In January 2011, he was released on parole, pursuant to the August 2010 decision of the Board of Parole Hearings (Board), that he was suitable for parole. Previously, a 2009 grant of parole by the Board was reversed by Governor Arnold Schwarzenegger (the Governor), in February 2010, giving rise to Barlow's current petition for habeas relief in this court (and earlier, in the trial court).

We issued an order to show cause, the People filed a return, and Barlow filed a traverse. Now, it is without dispute, and established by judicially noticeable materials, that the Governor on December 31, 2010 declined to further review the Board's most recent decision to grant parole. (Evid. Code, § 452, subd. (c).)

As of the time that oral argument was held in this matter, on January 12, 2011, the Attorney General requested in a supplemental return that this court dismiss the petition as moot, on the grounds that Barlow has since been released on parole. Barlow objects to dismissal, contending that a remaining issue must be decided, regarding whether he may be entitled to a credit against his parole term for the time he spent in prison after the effective date of the Board's 2009 parole grant (on the grounds that it was wrongfully reversed by the Governor).

In light of all these subsequent developments, we have conducted a limited review of the arguments raised in the petition, and now grant judicial notice as requested by Barlow of the proceedings in 2010. We determine that Barlow has received all of the relief to which he is entitled, which does not include any request for additional credits, and we therefore dismiss the petition.

I

HISTORY OF PROCEEDINGS

A. The Board Proceedings; Governor's Reversals of Board's Parole Grants

Following Barlow's convictions of second degree murder with use of a firearm, exhibiting a deadly weapon and assault with a deadly weapon, the superior court sentenced him to 17 years to life in prison. This court affirmed the judgment on appeal in 1985.

Barlow became eligible for parole in 1993, but until 2004, he was denied parole. After a 2004 grant that was reversed by the Governor, several subsequent hearings were conducted. The Board again granted parole in 2008, 2009, and 2010. Regarding the 2008 and 2009 grants, the Governor reversed those determinations, most recently in February 2010.

In his February 2010 reversal of the Board's grant of Barlow's parole, the Governor relied on (1) Barlow's "lack of insight, " demonstrated by the fact that Barlow's "explanation for the crime has evolved" in a manner suggesting he has attempted to validate his behavior over the years; (2) the "atrocious" nature of the commitment offense, involving multiple victims (holding gun to Burwell's companion's head, then shooting Burwell) and/or a trivial motivating factor; and (3) the 2007 psychological evaluation, indicating Barlow has a low to moderate risk for future violence.

The 2007 psychological evaluation found Barlow's account of the offense to be consistent with the official records, and noted he accepted full culpability for the crime, and showed remorse. Apparently, Barlow underwent a March 2010 psychological evaluation, which was favorable toward parole.

B. Current Habeas Petition

In his current writ petition, Barlow contends the Governor's determination essentially relied only upon the nature of the commitment offense. He argues that no evidence supported the reversal, and alternatively, that the denial gave rise to due process violations, ex post facto claims, and was done under an illegal general policy of arbitrarily denying parole. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 636-640; In re Lawrence (2008) 44 Cal.4th 1181.)

C. Renewed Grant of Parole in August 2010; Request for Judicial Notice

At the August 2010 hearing, the Board determined that Barlow was suitable for parole. By letter of December 31, 2010, the Governor declined to review that grant of parole.

Under Evidence Code section 452, this court may judicially notice "[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States." (§ 452, subd. (c).) Matters such as resolutions, reports and orders of administrative agencies or the state may be judicially noticed. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518; Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134; Childs v. State of California (1983) 144 Cal.App.3d 155, 162.)

We accordingly grant Barlow's request to take judicial notice of both the 2010 hearing transcript, and the Governor's letter declining further review, which are intended to demonstrate that during the pendency of his effort to obtain appellate relief, the Board again found him suitable for parole. (Evid. Code, §§ 452, subd. (c), 459.)

Although appellate courts are free to take judicial notice of the existence of such official acts and records including the truth of the results reached, " 'we do not take judicial notice of the truth of all matters stated therein.' [Citations.] '[T]he taking of judicial notice of the official acts of a governmental entity does not in and of itself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.' [Citation.]" (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257.)

II

PEOPLE'S REQUEST TO DISMISS APPEAL; REMAINING CREDIT ISSUE

The People argue this petition should be dismissed as moot because Barlow has already received relief from the Board, and the Governor no longer opposes that 2010 release decision. A question may be deemed moot when, although it initially amounted to an existing controversy, the passage of time, the acts of the parties, or a court decision have deprived the controversy of viability. (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 868-869, fn. 8.; Boccato v. City of Hermosa Beach (1984) 158 Cal.App.3d 804, 808.) We agree with the People that it is no longer necessary for this court to reach the merits of the petition on the release issue.

In response, Barlow relies on his judicial notice request to argue that another issue raised in his petition remains for decision, i.e., whether he may be entitled to a credit against his parole term for the time he spent in prison after the effective date of the Board's 2009 parole grant, due to the delay caused by the Governor's reversal decision, which he continues to argue was wrongful. (§ 3000.1, subd. (b).)

Arguably, the Board's 2010 decision, and the Governor's decision not to review the grant of parole, does not entirely moot the current writ proceedings, with respect to this credit issue. However, we need only briefly consider the merits of Barlow's credit argument, and do so for the sole purpose of determining whether the petition continues to raise an active controversy upon which relief could properly be granted. As we explain, it does not.

We reject Barlow's argument that the proper remedy includes an order that he be given credit, reducing his parole period, for the amount of time he has spent in confinement since the Governor's February 3, 2010 determination of reversal was made. As explained in In re Chaudhary (2009) 172 Cal.App.4th 32 at page 37, section 3000.1 requires that for credit to be granted, a parolee must first have been "released" on parole, and five continuous years on parole must be completed after the parolee's "release" from confinement. (Also see In re Gomez (2010) 190 Cal.App.4th 1291, 1309-1310 [holding that the time spent in prison after the effective date of a grant of parole, but where such grant is reversed by the Governor and ultimately reinstated by the court, does not satisfy any part of the five-year period between "release" from prison and eligibility for discharge under section 3000.1].)

As already explained, after the subject February 2010 reversal of the parole grant, the Board again granted parole at its August 3, 2010 hearing. However, Barlow's time spent in custody prior to his "release, " which did not occur until January 2011, cannot qualify as part of section 3000.1's five-year parole discharge eligibility requirement. (In re Chaudhary, supra, 172 Cal.App.4th at p. 37.) We therefore conclude the proper remedy in this case, in light of the recent, unopposed grant of parole, is to dismiss the petition, for lack of any pending controversy upon which relief may be granted. (Id. at p. 38.) Barlow will suffer no prejudice if the present proceedings are dismissed, and neither will the People.

DISPOSITION

Judicial notice is granted, and the petition is dismissed.

WE CONCUR: BENKE, Acting P. J., HALLER, J.


Summaries of

In re Barlow

California Court of Appeals, Fourth District, First Division
Feb 24, 2011
No. D057540 (Cal. Ct. App. Feb. 24, 2011)
Case details for

In re Barlow

Case Details

Full title:In re DONALD BARLOW on Habeas Corpus.

Court:California Court of Appeals, Fourth District, First Division

Date published: Feb 24, 2011

Citations

No. D057540 (Cal. Ct. App. Feb. 24, 2011)