The sentence was later modified to life imprisonment. Those familiar with Johnson's first appearance before this court ( In re Johnson (1992) 8 Cal.App.4th 618 [ 10 Cal.Rptr.2d 460] ) know the early procedural history. On December 3, 1981, the Board of Prison Terms conducted a parole consideration hearing, found Johnson suitable for parole, and set a parole release date of October 17, 1994.
After the panel makes a decision as to suitability or unsuitability, the Governor has an opportunity to review and reverse or modify that decision. See Cal. Const. Art. V § 8(b); Cal. Penal Code §§ 3041.1, 3041.2; In re Johnson 8 Cal. App. 4th 618 (1992). The governor's review must be based on "the same factors which the parole authority is required to consider."
Respondent cites to decisions of the California Supreme Court and Court of Appeal for the proposition that this Court is required to grant a new rescission hearing instead of releasing petitioner. (Memorandum, pp. 4-6) (citing In re Rosenkrantz, 29 Cal.4th 616, 658, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002); In re Ramirez, 94 Cal.App.4th 549, 572, 114 Cal.Rptr.2d 381 (2001); In re Johson 8 Cal.App.4th 618, 626-27, 10 Cal.Rptr.2d 460 (1992); In re Fain, 65 Cal.App.3d 376, 386-88, 135 Cal.Rptr. 543 (1976).) This Court is aware of no authority that supports a view that a federal court, granting a federal writ of habeas corpus, must follow the procedures of state habeas review.
Our decision that an appeal lies does not express any view as to the merits of the People's appeal or, should the appeal be successful, as to an appropriate sentence. (See In re Johnson (1992) 8 Cal.App.4th 618, 626 ["Whereas in Tanner . . . there was absolute certainty that if the judgment were reversed the defendant would be imprisoned for an identifiable term, here it is not known whether Johnson's parole will be rescinded"].) Tanner thus does not justify dismissal of the appeal.
And a reversal of the 2010 judgment simply recognizes the reality that, because the 2009 judgment is operative, the 2010 judgment must be treated as having never occurred. Since the 2009 judgment did not address the release-date issue and the release date is fluid and administrative (In re Johnson (1992) 8 Cal.App.4th 618, 623 ["the actions of the Board, including the granting of parole and the setting of a release date are purely administrative decisions, and any administrative agency has the inherent power to reconsider 'unless reconsideration is precluded by law' "]), a reversal of the instant 2010 judgment frees the Board to administer the 2009 calculation if it believes that calculation to be correct, the 2010 calculation if it believes that calculation to be correct, or any other calculation that may be available to it in the administration of release dates for inmates granted parole (In re Powell (1988) 45 Cal.3d 894, 903 ["A prison inmate has no vested right in his prospective liberty on a parole release date."]). MOOTNESS OF THE PETITION