Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. HCN0996, Joan P. Weber, Judge. Remanded with directions.
O'ROURKE, J.
Dawn Davison, Warden of the California Institution for Women at Corona, appeals from a superior court order granting habeas corpus relief to petitioner Patricia Johnson. In its order, the superior court directed the Board of Parole Hearings (Board) to conduct a new parole eligibility hearing and find Johnson suitable for parole "unless new evidence or information comes to light." The court also ordered that statements by the victim's next of kin would "not appear to be relevant or admissible at the rehearing" unless they involved Johnson's conduct since Johnson's initial parole hearing in April 2007 (the April 2007 hearing). Appellant contends the superior court's order limiting consideration of victim family statements violates the California Constitution as well as Penal Code section 3043. Appellant further contends that because the power to grant and revoke parole is vested exclusively in the executive branch, the only permissible remedy the superior court may order following the grant of habeas corpus is to remand the matter to the Board to proceed in accordance with due process.
While appellant's first point is arguably moot for reasons explained below, we exercise our discretion to address it given its importance and conclude that the superior court's order restricting the Board's consideration of victim family member statements to information pertaining to Johnson's conduct after April 2007 is in excess of jurisdiction and unenforceable. We further conclude the superior court exceeded its authority to the extent it restricted the Board's consideration of evidence in deciding Johnson's parole suitability to evidence of circumstances or conduct occurring after April 2007. We remand the matter with directions set forth below.
PROCEDURAL BACKGROUND
Because the present appeal is limited to the form of relief granted by the superior court, we need not set out the facts of Johnson's commitment offense (which this court summarized in People v. Johnson (May 16, 2008, D049357) [nonpub. opn.].) In 1991, Johnson was convicted of first degree murder and sentenced to an indeterminate term of 29 years to life in state prison. In 2006, following a retrial, Johnson was convicted of second degree murder and sentenced to a term of 18 years to life. In April 2007, Johnson had her first parole suitability hearing. The Board found Johnson would pose an unreasonable risk of danger to society or a threat to public safety based "first and foremost" on the nature of her commitment offense. It denied parole for three years.
Johnson filed a petition for writ of habeas corpus challenging the Board's decision. The superior court granted the petition, finding the Board had refused to consider certain mitigating evidence and there were no facts to support the Board's findings as to the factors on which it relied (that the offense was carried out with exceptionally callous disregard for human suffering and its motive was inexplicable or very trivial in relation to the offense). It ordered the Board to conduct a new parole eligibility hearing and grant Johnson a parole date "unless new evidence or information comes to light." On appellant's request, the court later modified its order to allow the Board to schedule the hearing so as to give the victim's next of kin notice of the hearing if they so requested. In doing so, the court, following In re Singler (2008) 169 Cal.App.4th 1227 (Singler), stated: "Unless the statements by the victim's family would somehow involve Petitioner's conduct since the April 2007 hearing, the victim's family's statements would not appear to be relevant or admissible at the rehearing. As such, while notice under Penal Code section 3043 is necessary if it was requested, the victim's family has no right to be heard regarding any information that was available at the Petitioner's 2007 parole hearing." It declined to further modify its order with regard to its directions to the Board to grant Johnson a parole date unless new evidence or information was presented at the parole eligibility rehearing. Respondent timely filed the present appeal.
On March 3, 2009, this court denied Johnson's petition for writ of supersedeas seeking a stay and expedited this appeal.
DISCUSSION
I. Consideration of Victim Family Member Statements
Appellant contends that as a matter of law, the Board must consider the entire and uninterrupted statements of the victim's next of kin at any parole hearing as required by Article I, section 28, subdivisions (b)(8) and (b)(15) of the California Constitution and Penal Code section 3043, which, after the enactment of Proposition 9 on November 4, 2008, grant crime victims rights to advance notice and participation in "critical" stages in a criminal proceeding. (See Cal. Const., art. I, § 28, amended by initiative, Gen. Elec. (Nov. 4, 2008), commonly known as Prop. 9; Historical and Statutory Notes, 51B West's Ann. Pen. Code (2009 supp.) foll. § 3043, p. 176.) She maintains the superior court's order as to the relevance of family member statements violates these constitutional and statutory rights.
A. Request to Dismiss Appeal/Request for Judicial Notice
Preliminarily, we address Johnson's argument that the present appeal should be dismissed as moot because Johnson has already received the hearing ordered by the superior court. She asks us to take judicial notice of the Board's February 2009 petition for writ of supersedeas in which the Board represented the hearing would occur on April 23, 2009, and the letters submitted by the victim's family, which she asserts were read into the record in full by the panel. She also requests leave to file the transcript of the April 2009 parole hearing.
In response, appellant requests that we take judicial notice of the April 2009 parole hearing transcript under California Rules of Court, rule 8.252 and Evidence Code sections 452, subdivision (c) and 459. She maintains the transcript shows that the appeal is not moot; according to appellant, the Board "found Johnson suitable [for parole] based on the limits placed on the Board in the superior court's order, which is the subject of this appeal." Appellant asserts that because this court can invalidate the Board's decision if she prevails on appeal, the appeal is not moot.
Subdivision (c) of Evidence Code section 452 permits the court to judicially notice "[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States." In accordance with section 452, subdivision (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 grant the Board's unopposed request that we judicially notice the transcript of the April 23, 2009 initial parole hearing, but solely for purposes of determining the matters on which the Board relied in reaching its decision. (See In re Roderick (2007) 154 Cal.App.4th 242, 261, fn. 15 [granting judicial notice of transcript of later parole hearing without analysis].)
While 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.' " (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; see also Party City Corp. v. Superior Court (2008) 169 Cal.App.4th 497, 507; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort(2001) 91 Cal.App.4th 875, 882 [holding with respect to court records; court may take judicial notice of existence of documents in court file, including the truth of results reached, but may not take notice of hearsay statements or allegations in affidavits or declarations "because such matters are reasonably subject to dispute and therefore require formal proof"].)
Here, contrary to appellant's assertion that the Board's decision was based on the superior court's evidentiary limitations, the transcript of the April 2009 hearing indicates otherwise. Though the presiding commissioner initially stated he would not consider victim family member statements, when actually presented with those statements he disagreed with the Superior Court's ruling. He read the superior court's order limiting the Board's consideration of family member statements into the record and stated, "I clearly believe that is very wrong with respect to Marsy's Law...." Treating the court's order as an advisory guideline, the commissioner proceeded to read into the record letters received from the victim's ex-wife and son over Johnson's counsel's objection.
The Board's decision to consider the victim family member statements regardless of the superior court's order arguably renders the first appellate contention moot. A question may be deemed moot when, although it initially presented an existing controversy, the passage of time or the acts of the parties or a court decision has deprived the controversy of its life. (Boccato v. City of Hermosa Beach (1984) 158 Cal.App.3d 804, 808.) This case meets the mootness criteria because the Board did in fact hear the family member statements without limitation; as to that point there is no remaining controversy that presents " 'further immediate concern to the initiating parties.' " (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 868-869, fn. 8.)
Though the issue is technically moot, we nevertheless exercise our discretion to address it. " 'There is ample precedent for appellate resolution of important issues of substantial and continuing public interest which otherwise may have been rendered moot and of no further immediate concern to the initiating parties.' " (Abbott Ford, Inc. v. Superior Court, supra, 43 Cal.3d at p. 869, fn. 8.) Appellant's claim raises an important issue that is capable of repetition but may evade appellate review in view of the Governor's review authority over the Board's decision. (See In re Lawrence (2008) 44 Cal.4th 1181, 1203 & fn. 9 [summarizing Governor's review powers]; e.g. In re R.V. (2009) 171 Cal.App.4th 239, 245-246.) We turn to the merits.
B. The Superior Court Lacked Authority to Limit the Board's Consideration of Family Member Statements to Information Pertaining to Johnson's Conduct after April 2007
Appellant's challenge to the superior court's remedy raises purely legal questions, and thus our review is de novo. (In re Masoner (2009) 172 Cal.App.4th 1098, 1105 (Masoner) [addressing Board's appellate challenge to superior court's remedial order directing petitioner's release from custody]; In re Lugo (2008) 164 Cal.App.4th 1522, 1535-1536 [addressing claims that superior court's order granting relief contravened a Penal Code section and separation of powers principles found in the California Constitution].)
In November 2008, the voters enacted Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law." (Ballot Pamp., Gen. Elec. (Nov. 4, 2008) text of Prop. 9, p. 128.) Proposition 9 amended the state Constitution (as well as various Penal Code sections) to expand and establish certain "personally held and enforceable" rights to crime victims and their families. Subdivision (b) of article I, section 28 now states: "[I]n order to preserve and protect a victim's rights to justice and due process, a victim shall be entitled to the following rights: [¶]... [¶] (8) To be heard, upon request, at any proceeding, including delinquency proceedings, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue. [¶]... [¶] (15) To be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified upon request, of the parole or other release of the offender." (Cal. Const., art. I, § 28, subd. (b).)
Article I, section 28 now provides in part that "The People of the State of California find and declare all of the following: [¶]... Criminal activity has a serious impact on the citizens of California. The rights of victims of crime and their families in criminal prosecutions are a subject of grave statewide concern. [¶]... Victims of crime are entitled to have the criminal justice system view criminal acts as serious threats to the safety and welfare of the people of California. The enactment of comprehensive provisions and laws fully protecting those rights and ensuring that crime victims are treated with respect and dignity, is a matter of high public importance.... [¶]... The rights of victims pervade the criminal justice system. These rights include personally held and enforceable rights described in paragraphs (1) through (17) of subdivision (b)."
Penal Code section 3043, as amended by Proposition 9, grants the victim or the victim's next of kin at least 90 days notice "of any hearing to review or consider the parole suitability or the setting of a parole date," as well as the "right to appear, personally or by counsel, at the hearing and to adequately and reasonably express his, her, or their views concerning the prisoner and the case, including, but not limited to the commitment crimes, determinate term commitment crimes for which the prisoner has been paroled, any other felony crimes or crimes against the person for which the prisoner has been convicted, the effect of the enumerated crimes on the victim and the family of the victim, the person responsible for these enumerated crimes, and the suitability of the prisoner for parole." (Pen. Code, § 3043, subds. (a)(1) & (b)(1).) The statute provides that "[t]he board, in deciding whether to release the person on parole, shall consider the entire and uninterrupted statements of the victim or victims, next of kin, immediate family members of the victim, and the designated representatives of the victim or next of kin, if applicable, made pursuant to this section and shall include in its report a statement whether the person would pose a threat to public safety if released on parole." (Pen. Code, § 3043, subd. (d).) Proposition 9 added the phrase "entire and uninterrupted" to the statute. (Ibid.; see Historical and Statutory Notes, 51B West's Ann. Pen. Code, supra, foll. § 3043, pp. 175-176)
Former section 3043, subdivision (b) read: "The victim, next of kin, two members of the victim's immediate family, or two representatives designated for a particular hearing by the victim or, in the event the victim is deceased or incapacitated, by the next of kin in writing prior to the hearing have the right to appear, personally or by counsel, at the hearing and to adequately and reasonably express his, her, or their views concerning the crime and the person responsible, except that any statement provided by a representative designated by the victim or next of kin shall be limited to comments concerning the effect of the crime on the victim." (Former Pen. Code, § 3043, subd. (b).)
We apply the same principles governing interpretation of a statute to an initiative measure enacted by the voters. (Arias v. Superior Court (2009) 46 Cal.4th 969, 978.) "[O]ur primary task here is to ascertain the intent of the electorate [citation] so as to effectuate that intent [citation]. [¶] We look first to the words of the initiative measure, as they generally provide the most reliable indicator of the voters' intent. [Citations.] Usually, there is no need to construe a provision's words when they are clear and unambiguous and thus not reasonably susceptible of more than one meaning." (Ibid.)
There is no need to construe the language of the initiative or Penal Code section 3043. Johnson does not assert the language is ambiguous or propose any particular construction. Under the statute's plain and commonsense meaning, Johnson's April 2009 hearing before the Board following the superior court's remand was a "hearing to review or consider the parole suitability or the setting of a parole date." (Pen. Code, § 3043, subd. (a)(1).) Johnson contends, without authority, that the hearings referenced in Penal Code section 3043 do not include a "limited hearing following the granting of a habeas petition finding the initial hearing to be [c]onstitutionally defective." But the Legislature did not exclude post-habeas proceedings from the type of parole hearing at which victims may speak in Penal Code section 3043, and we will not read into the statute an exclusion that does not appear. (People v. Burgio (1993) 16 Cal.App.4th 769, 778.) And, as we explain further below, under separation of powers principles, courts must carefully exercise their judicial review powers so as not to intrude upon the Board's discretion to "review or consider" the setting of a parole date even after habeas relief is granted. Accordingly, in this case, the statute required the court to permit the victim's next of kin to reasonably express all of their views concerning the petitioner and the case, including the commitment offense, the effect of Johnson's crime upon them, and Johnson's suitability for parole. (Pen. Code, § 3043, subd. (b); see e.g., In re Weider (2006) 145 Cal.App.4th 570, 590 [Board is bound to consider victim opposition in reaching its decision of parole suitability].)
Singler, supra, 169 Cal.App.4th 1227, relied upon by the superior court, does not change our conclusion. In Singler,the Third District Court of Appeal granted an inmate's petition for habeas corpus on grounds the uncontested evidence presented at his 2006 parole hearing established he met every suitability factor identified in the applicable regulations and thus did not support the Board's finding he was unsuitable for parole at that time. (Id. at pp. 1244-1245.) Without any analysis or discussion about the proper scope of remedy, the court in its disposition granted the habeas petition and directed the Board "to hold a new hearing within 30 days of the finality of this decision and to find Singler suitable for parole, unless new evidence of his conduct and/or change in mental state subsequent to the 2006 parole hearing is introduced and is sufficient to support a finding that he currently poses an unreasonable risk of danger to society if released on parole." (Id. at p. 1245.) There is no indication in the Court of Appeal's opinion that it or the superior court was presented with a question about the Board's consideration of statements by the victim's family members. Accordingly, it does not control our conclusion on this issue. To the extent Singler suggests it is appropriate to restrict the Board's consideration of victim or victim family member statements on remand, we disagree with it.
"Parole considerations applicable to life prisoners convicted of murder are contained in title 15 of the California Code of Regulations, section 2400 et seq." (In re Weider, supra, 145 Cal.App.4th at p. 583; see Singler, supra, 169 Cal.App.4th at p. 1238 [Board is required to establish criteria for the setting of parole dates under Penal Code section 3041, subdivision (a)].) In determining suitability for parole, the Board must consider the factors specified in the regulations. (In re Rico (2009) 171 Cal.App.4th 659, 671, citing In re Lawrence, supra, 44 Cal.4th at p. 1202 & Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) In order to determine whether the prisoner is a current public safety risk, the regulations require the Board to consider information "including 'the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.' " (In re Criscione (2009) 173 Cal.App.4th 60, 72, quoting Cal. Code Regs., tit. 15,§ 2402, subd. (b).) The specified factors, however, are "general guidelines" as the regulations provide that "[a]ll relevant, reliable information available to the [Board] shall be considered in determining suitability for parole." (Cal. Code Regs., tit. 15, § 2402, subd. (b); see In re Rico, at p. 671, fn. 10 [explaining that Title 15, section 2402 sets forth criteria for murders committed on or after November 8, 1978]). All further references to regulations are to title 15 of the California Code of Regulations.
"When particular procedures or remedies are prescribed by statute, ' " 'and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction....' " ' " (In re Stier (2007) 152 Cal.App.4th 63, 77 quoting In re Marriage of Jackson (2006) 136 Cal.App.4th 980, see also Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 290.) Having directed a remedy in violation of Penal Code section 3043 by placing a limitation on the Board's consideration of family member statements, the superior court's remedial order was in excess of its jurisdiction. The error renders the order unenforceable as in contravention of the public policies expressed in article I, section 28 of the California Constitution. (See In re Marriage of Jackson, at p. 989 [appellate courts will void acts in excess of jurisdiction when the act offends public policy; reciting cases].)
II. The Superior Court Erred To the Extent it Restricted the Board's Consideration of Evidence at Johnson's Parole Rehearing
Appellant contends the authority to determine Johnson's suitability for parole is vested in the executive branch, and thus where the Board's decision is not supported by some evidence, the only habeas corpus relief to which Johnson is entitled is to vacate the Board's parole decision and remand the matter to the Board to proceed in accordance with due process of law. She relies on In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz), In re DeLuna (2005) 126 Cal.App.4th 585, 598 (DeLuna), and In re Ramirez (2001) 94 Cal.App.4th 549, 572, overruled on other grounds in In re Dannenberg (2005) 34 Cal.4th 1061, 1100. Johnson responds that the superior court's order is lawful and appropriate under In re Gaul (2009) 170 Cal.App.4th 20 (Gaul), Singler, supra, 169 Cal.App.4th 1227, In re Burdan (2008) 169 Cal.App.4th 18, and In re Rico, supra, 171 Cal.App.4th 659.
A. Separation of Powers Doctrine
Because appellant's contention raises separation of powers concerns, we set out those principles. " 'The separation of powers principle is embodied in the California Constitution, which provides as follows in article III, section 3: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." " 'The separation of powers doctrine limits the authority of one of the three branches of government to arrogate to itself the core functions of another branch. [Citations.]' [Citation.]" [Citation.] Although the doctrine is not intended to prohibit one branch from taking action that might affect those of another branch, the doctrine is violated when the actions of one branch "defeat or materially impair the inherent functions of another branch. [Citation.]" [Citation.] Intrusions by the judiciary into the executive branch's realm of parole matters may violate the separation of powers.' " (Masoner, supra, 172 Cal.App.4th at pp. 1107-1108, quoting In re Lugo, supra, 164 Cal.App.4th at p. 1538.)
While the requirement of procedural due process places some limitations on the Board's broad discretionary power, the California Supreme Court nevertheless characterizes the Board's discretion in parole related matters "as 'great' and 'almost unlimited.' " (In re Lugo, supra, 164 Cal.App.4th at p. 1537, quoting Rosenkrantz, supra, 29 Cal.4th at p. 655; see In re Criscione, supra, 173 Cal.App.4th at p. 73.) Indeed, our state's high court has made it clear that "[t]he executive branch has 'inherent and primary authority' over parole matters. [Citation.] Within that branch, the Board is an 'executive parole agency' that is an 'arm of the Department of Corrections.' " (In re Roberts (2005) 36 Cal.4th 575, 588; see also In re Bowers (1974) 40 Cal.App.3d 359, 362 [power to grant and revoke parole is vested in Department of Corrections, not the courts; the proper function of the courts with respect to parole and revocation of parole is simply to ensure that the prisoner is accorded due process].) "By its nature, the determination whether a prisoner should be released on parole is generally regarded as an executive branch decision. [Citations.] The decision, and the discretion implicit in it, are expressly committed to the executive branch. [Citations.] It is not a judicial decision." (In re Morrall (2002) 102 Cal.App.4th 280, 287.)
B. Rosenkrantz and the Permissible Scope of Habeas Relief on Remand to the Board
In Rosenkrantz, the California Supreme Court addressed the Governor's contention that when reviewing the Board's parole decision, the judicial branch was limited to deciding whether procedural safeguards were met. (Rosenkrantz, 29 Cal.4th at pp. 657-658.) The court disagreed, holding that the judicial branch was authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comported with due process of law. (Id. at p. 658.) The court explained, however, that courts could inquire only whether some evidence in the record before the Board supported the decision to deny parole based on the factors specified by statute and regulation. (Ibid.) The court continued: "If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the petitioner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (Ibid., citing In re Ramirez, supra, 94 Cal.App.4th at p. 572 & In re Bowers, supra, 40 Cal.App.3d at p. 362.)
The high court clarified its formulation of the "some evidence" review standard in In re Lawrence, supra, 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241. It explained that the proper "standard of review is whether there exists 'some evidence' that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor." (Shaputis, at p. 1254; Lawrence, at pp. 1191, 1212.) In part, the Supreme Court reasoned, "It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." (Lawrence, at p. 1212.) Accordingly, on review of a decision of the Board or Governor, "the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Ibid; see also In re Dannenberg (2009)173 Cal.App.4th 237, 248-252 [summarizing Lawrence in depth].) Despite its conclusion, the court reiterated that under Penal Code section 3041, subdivision (b) the Board has the express power and duty in an individual case to decline to fix a firm release date if, on an individualized evaluation of each of the statutory factors, it finds the circumstances of the inmate's crime or criminal history continue to reflect that the prisoner presents a risk to public safety. (Lawrence, 44 Cal.4th at pp. 1227-1228.)
Lawrence involved review of a Court of Appeal's decision, on an original petition for writ of habeas corpus, to vacate the Governor's decision to reverse the Board's setting of a parole date. (Id. at pp. 1190-1191.) The Supreme Court agreed that no evidence supported the Governor's conclusion that the petitioner would pose an unreasonable risk of danger to the public. (Id. at p. 1223.) It affirmed the Court of Appeal's decision to issue a writ vacating the Governor's reversal and reinstating the Board's 2005 grant of a parole release. (Id. at pp. 1190, 1229.)
Before Rosenkrantz, few courts had squarely addressed the scope of permissible habeas remedy in the parole eligibility context upon a finding that the Board's parole decision lacked evidentiary support. In In re Ramirez, supra, 94 Cal.App.4th 549, the superior court granted an inmate's habeas petition finding no evidence to support the Board's findings, and it ordered the Board to hold a new hearing and set a parole date for the inmate. (Ramirez, 94 Cal.App.4th at p. 552.) The First District, Division Three Court of Appeal upheld the grant of habeas relief on its merits, but concluded "the trial court erred by making its own evaluations of the evidence before the Board, and by ordering the Board to set a parole date. In deference to the Board's broad discretion over parole suitability decisions, courts should refrain from reweighing the evidence, and should be reluctant to direct a particular result. [Citation.] The Board must be given every opportunity to lawfully exercise its discretion over Ramirez's parole application." (Ramirez, at p. 572.) The appellate court ordered the superior court to "enter an order granting the habeas corpus petition, and requiring the Board to conduct another parole suitability hearing." (Ibid.)
After Rosenkrantz, courts began more routinely addressing the permissible scope of remedy on remand of a parole matter to the Board. The Sixth District Court of Appeal reviewed the superior court remand orders in DeLuna, supra, 126 Cal.App.4th 585, In re Weider, supra, 145 Cal.App.4th 570, and Board of Parole Hearings v. Superior Court (Portee) (2008) 170 Cal.App.4th 104 (Portee). In DeLuna, the People appealed from a superior court order granting the petitioner's habeas petition and remanding the matter to the Board of Prison Terms. (DeLuna, 126 Cal.App.4th at p. 590.) In its order, the superior court found the Board had ignored experts and made contrary findings in denying parole and thus precluded the Board on remand " 'from relying on any of the purported reasons it previously articulated as outlined above.' " (Ibid.) Conducting de novo review of the Board's decision, the Sixth District Court of Appeal found the majority of the Board's stated reasons lacked evidentiary support. (Id. at p. 598.) It held that when the factors supported by the evidence could justify denying parole, but it is not clear that the Board would have reached this conclusion, the "appropriate remedy is to direct the Board to reconsider the prisoner's parole suitability in accordance with the discretion allowed by law." (Ibid.)Thus, the Court of Appeal upheld the superior court's order to the extent it remanded the case to the Board with directions to proceed in accordance with due process. (Ibid.) However, it characterized the portion of the order precluding the Board from relying on previously articulated reasons as an attempt to "curtail the Board's exercise of discretion" and thus in excess of its authority. (Id. at p. 599.)
In In re Weider, supra, 145 Cal.App.4th 570, the warden appealed from a superior court order granting an inmate habeas relief on grounds the only parole unsuitability factor supported by the evidence did not justify the denial of parole. (Id. at pp. 574, 583.) The superior court remanded the matter to the Board, ordering it to hold a new hearing and to proceed with due process. (Id. at pp. 583, 590.) However, the court further instructed the Board to consider only new evidence that had not previously been presented. (Ibid.) The Sixth District Court of Appeal held this was error: "To the extent this part of the order precludes the Board from considering '[a]ll relevant, reliable information' ([Regs.] § 2402, subd. (b)), the court exceeded its jurisdiction." (Weider, 145 Cal.App.4th at p. 590.) It modified the superior court's order by striking that provision, stating in its disposition, "As modified, the order granting Weider's petition for writ of habeas corpus and directing the Board of Parole Hearings to 'conduct a new hearing 30 days after receipt of this order by the Attorney General,' is affirmed." (Id. at p. 591.)
In re Weider was disapproved by implication in In re Lawrence, supra, 44 Cal.4th at page 1217 to the extent the court engaged in a comparative analysis of egregiousness of other crimes.
Specifically, it instructed the Boardthat it " ' "may not find [Weider] unsuitable for parole based on the same evidence and findings articulated at the [previous] hearing, [however] if new evidence is presented different from the evidence presented at the [previous] hearing, the [Board] may consider [Weider]'s suitability considering that new evidence, if any." ' " (In re Weider, supra, 145 Cal.App.4th at p. 590.)
Portee was decided after Lawrence clarified the judicial review standard. There, the superior court granted an inmate a new hearing directing the Board to " 'explain what instances of [the inmate's] commitment offense would not qualify for invocation of any unsuitability criteria which may be used to deny him parole.' " (Portee, supra, 170 Cal.App.4th 104, 107.) The Board petitioned for a writ of mandate to vacate that instruction, arguing that a new hearing comporting with due process was the only relief to which the petitioner was entitled. (Id. at pp. 108, 110.) Acknowledging its prior opinions in DeLuna and In re Weider, the appellate court disagreed that the superior court's order restricted the Board's consideration of the evidence: "In this case, respondent court's order in no way prevents or limits the Board from finding Portee unsuitable based on the same evidence and findings articulated at the previous hearing. Nor does the order place restrictions on the Board as to the evidence it may consider or dictate how it should evaluate that evidence. Pursuant to respondent court's order the Board may consider all relevant and reliable evidence and may base a finding on old evidence, new evidence or a combination of the two. Respondent court's order asks the Board to consider the circumstances of the commitment offense and articulate the reasons for its findings." (Portee, at pp. 111-112.) The appellate court nevertheless granted the writ and instructed the superior court to vacate its order and reconsider its ruling on grounds it had asked the Board to focus on a consideration irrelevant to a determination of future dangerousness: "If... respondent court had ordered the Board to isolate the parts of Portee's commitment offense that qualified for invocation of an unsuitability factor or factors and state the nexus between the factor or factors and the ultimate determination of current dangerousness, we could have upheld respondent court's order." (Id. at p. 112.) The court explained this would have simply required the Board to comply with the standard expressed in Lawrence, supra, 44 Cal.4th at p. 1210, to give its "reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision — the determination of current dangerousness." (Portee, 170 Cal.App.4th at p. 112.) It observed that in view of Lawrence, such an order "would have been a longhand way of saying, proceed in accordance with due process." (Id. at p. 112, fn. 10.)
The Sixth District Court of Appeal also acknowledged its opinion in In re Bettencourt (2007) 156 Cal.App.4th 780, 807, in which it declined to address the Board's contention that the superior court improperly directed the Board to hold a new hearing in a manner contrary to law, but observed in a footnote that it had previously ruled "the trial court exceeds its jurisdiction when the court precludes the Board from considering all relevant, reliable information." (In re Bettencourt, supra, 156 Cal.App.4th at p. 807; see Portee, supra, 170 Cal.App.4th at p. 111.)
More recently, the Sixth District Court of Appeal briefly revisited the remedial issue in In re Lazor (2009) 172 Cal.App.4th 1185, where it modified a superior court order for a new parole hearing to omit a portion of the order precluding the Board from invoking a particular unsuitability factor in the petitioner's case "unless different evidence is presented." (Id. at pp. 1191, 1204.) Citing DeLuna, supra, the Court of Appeal held the court should not have restricted the Board's future exercise of discretion: "The circumstances of the murder, whether or not exceptional or especially cruel or callous, must be considered in light of other facts in the record, including 'changes in the inmate's psychological or mental attitude.' " (Lazor, 172 Cal.App.4th at p. 1199.)
Shortly after Portee, the Second District, Division Seven Court of Appeal decided Gaul, supra, 170 Cal.App.4th 20, in which the court addressed a petitioner's original writ of habeas corpus challenging the Board's decision to deny parole for one year (notwithstanding two prior findings of suitability) on grounds the Board's decision was not supported by some evidence and was otherwise arbitrary and capricious. (Gaul, at p. 24.) Applying Lawrence, supra, 44 Cal.4th 1181, the appellate court held the Board's decision was devoid of evidence rationally indicating Gaul posed an unreasonable risk of danger to society if released from prison. (Gaul, at pp. 24, 36.) The court then addressed the appropriate relief, acknowledging but declining to follow the directive in Rosenkrantz that courts after granting habeas relief should order the Board to proceed in accordance with due process of law. (Gaul, at p. 39.) It explained that Lawrence required examination of whether some evidence supported the Board's or Governor's decision that the inmate constitutes a current threat to public safety, and "[h]aving concluded that no such evidence exists 'in the full record before the Board' [citation], vacating the denial of parole and directing the Board to conduct a new hearing on the same record would be a meaningless exercise — particularly in this case in which the Board had previously twice determined Gaul's release would not pose an unreasonable risk of danger to society and the only new evidence presented at the November 2007 parole hearing supported his suitability for release on parole." (Gaul, 170 Cal.App.4th at pp. 39-40.)
Recognizing the possibility of new conduct by the petitioner since his last hearing, the court directed the Board "to find Gaul suitable for parole unless, within 30 days of the finality of this decision, the Board holds a hearing and determines that new evidence of Gaul's conduct in prison subsequent to his 2007 parole hearing supports a determination he currently poses an unreasonable risk of a danger to society if released on parole." (Gaul, supra, 170 Cal.App.4th at pp. 40-41.) In In re Rico, supra, 171 Cal.App.4th 659, Division Three of the Second District Court of Appeal followed Gaul in declining to remand a matter to allow the Board another opportunity to restate the basis for its decision to deny parole. (Rico, at p. 687.) It reasoned "[t]he [Board] has stated the basis for its unsuitability finding, and that finding was not supported by 'some evidence.' Further articulation of that flawed decision is unnecessary." (Ibid.) It distinguished In re Ramirez, supra, 94 Cal.App.4th 549, stating that in its case, unlike in In re Ramirez, it did not find the Board applied a flawed methodology in its decision-making process, necessitating a reweighing of evidence on remand. (Rico, at p. 688.) "Under these circumstances, ' "to proceed in accordance with due process of law" does not mean the Board, or the Governor, is to be given an opportunity to reconsider the parole decision' where there is not 'some evidence' in the record to support the unsuitability finding." (Ibid., quoting In re Burdan, supra, 169 Cal.App.4th at p. 39.) The Rico court thus directed the Board "to find petitioner suitable for parole unless either previously undiscovered evidence or new evidence discovered subsequent to the 2007 parole hearing, regarding his conduct, circumstances or change in his mental state, supports a determination that he currently poses an unreasonable risk of danger to society if released on parole." (Rico, 171 Cal.App.4th at p. 689.)
In Masoner, the same division of the Second District Court of Appeal that decided In re Rico reversed a superior court order that granted an inmate's habeas petition and ordered his release. (Masoner, supra, 172 Cal.App.4th at p. 1101.) The superior court's order had stated in part: " 'Since the Court has reviewed the materials that were before the Board and found no evidence to support its denial of parole and no evidence demonstrating that petitioner remains a danger to public safety, a remand to the Board in this case would amount to an idle act. (In re Smith (2003) 109 Cal.App.4th 489, 507...) [¶] The defendant is ordered released.' " (Masoner, at p. 1103.)
On the Board's appeal of the remedial portion of the superior court's order (it did not challenge the superior court's determination that no evidence supported Masoner's unsuitability for parole), the Court of Appeal reversed the order on grounds it (1) materially impaired the inherent discretion of the Board to make parole decisions on the basis of all relevant information; (2) usurped the Governor's constitutional authority to conduct final review of parole matters and (3) violated the separation of powers doctrine. (Masoner, supra, 172 Cal.App.4th at pp. 1105, 1108-1110.) The appellate court found the sole authority relied upon by the superior court, In re Smith, supra,109 Cal.App.4th 489, did not support the remedial order because Smith involved a "fundamentally different situation," namely, a habeas challenge to the decision of the Governor, whose constitutional authority is limited to a review of the materials provided by the Board and is thus "fundamentally different" from the Board's authority. (Masoner, at pp. 1105-1106.) Masoner explained that unlike the Governor, the Board has the authority and is required to consider "[a]ll relevant, reliable information" (regs. § 2402, subd. (b)) including "such factors as the inmate's 'past and present mental state;... behavior before, during and after the crime; any conditions of treatment or control... and any other information which bears on the prisoner's suitability for release.' " (Masoner, at pp. 1106-1107, 1109.) "The logic of this fundamental distinction dictates that while the superior court could have properly remanded the matter to the Board with directions to hold a new parole suitability hearing, it could not properly order Masoner's release." (Id. at p. 1107.) On the same ground, Masoner found In re Aguilar (2008) 168 Cal.App.4th 1479 and In re Burdan, supra, 169 Cal.App.4th 18 inapposite as involving review of parole denials made by the Governor. (Masoner, 172 Cal.App.4th at p. 1109.)
In reaching its decision, the Masoner court relied on In re Ramirez, supra, 94 Cal.App.4th 549, and the separation of powers principles expressed in In re Lugo, supra, 164 Cal.App.4th 1522. (Masoner, supra, 172 Cal.App.4th at pp. 1107-1108.) Based on those principles (as well as the fact the courts in Gaul, supra, 170 Cal.App.4th 20and Singler, supra, 169 Cal.App.4th 1227 issued limited remand orders) it concluded the superior court's remedial order violated the separation of powers doctrine in that it "infringed the Board's discretion to make parole decisions on the basis of all relevant information." (Id. at p. 1109.) It stated "the Board is required to consider such factors as the inmate's 'past and present mental state;... behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control... and any other information which bears on the prisoner's suitability for release.' (Cal. Code Regs., tit. 15 § 2402, subd. (b).) This necessarily involves the Board's consideration of any relevant information that may have come to light between the time parole was denied and the time the superior court granted habeas relief." (Masoner, 172 Cal.App.4th at p. 1109.)
The Masoner court observed the Board had conceded it was not " 'suggest[ing] that the appropriate remedy is one that would entitle the executive branch to disregard a judicial determination regarding the sufficiency of the evidence and to simply repeat the same decision on the same record. Instead, the executive branch must remain vested with the discretion to determine whether a new review is necessary, or whether, in light of the court's findings, the inmate should be released. Because some time may have passed between the Board's and the reviewing court's decisions, remand appropriately gives the Board and the Governor the necessary opportunity to review the record and determine whether the information relied upon by the court remains current and whether any new information weighing for or against the inmate's suitability for parole emerged while his decision was under review.' " (Masoner, supra, 172 Cal.App.4th at p. 1110.) It remanded the matter to the superior court with directions "to issue an order granting Masoner's petition for writ of habeas corpus and directing the Board to vacate its decision of August 25, 2005, and to conduct a new parole suitability hearing within 120 days of the issuance of the remittitur or final resolution in the California Supreme Court." (Id. at p. 1110.) It further directed the Board "to find Masoner suitable for parole unless new evidence of his conduct or a change in his mental state subsequent to his 2007 parole hearing supports a determination that he currently poses an unreasonable risk of danger to society if released on parole." (Id. at p. 1111.)
C. Rosenkrantz and Separation of Powers Principles Compel Reversal of the Superior Court's Order to the Extent it Limited the Board's Consideration of All Relevant and Reliable Evidence on Remand
At Johnson's hearing, the court and counsel discussed the superior court's remand orders. Johnson's counsel characterized them as "essentially limit[ing the scope of the hearing] to information after the suitability hearing of 2007, and order[ing] this Panel to grant Miss Johnson a parole date in the absence of some bad conduct since April 2007." He further stated: "We have registered an objection with an understanding of how this Commission intends to proceed in terms of reviewing the facts of the crime, and going through the standard parts of a suitability hearing. If the Commissioner has decided that that's how he's going to conduct the hearing we certainly respect that. We think and we would like the record to reflect that is outside the scope of the order."
The Commissioner proceeded to "work [his] way through" the orders and stated: "[G]iven that basically there was an initial suitability hearing in '07, and that that is still a matter of record, I will revise the process of this hearing to deal with only the new information in accord with the Court order." Invited to comment, the deputy district attorney disagreed: "[I]n terms of the Court order, it seems that the Court is supplanting the finding of the Board in 2007 that the inmate was not — and I repeat, not — suitable for parole because the Court concluded that the Board did not base their findings on anything other than the commitment offense, and having sat through the entirety of that hearing in 2007 it seems to me that that the Board based their decision — I didn't sit through the ruling. I was absent for the actual ruling by the Board. It seems to me that the Board's decision was based on more than simply the commitment offense; specifically, the way the inmate answered questions at that particular hearing, the inmate's lack of insight into why she committed the crime, so I think that the Court in its order to this Board today, as we sit today, takes the extra step of supplanting the Parole Board's purpose, and that's finding suitability or unsuitability.... I have no problem with this Board taking a look at the inmate's performance since the April '07 hearing and then taking into consideration all of the information that the Board in '07 had in front of them based on the record presented and making their own independent decision regarding suitability or unsuitability, but to simply look at the inmate's performance since '07, and absent any negative conduct, then say okay, you're automatically granted a parole date I think leapfrogs the entire process that we're here for." The Commissioner responded: "Well, I understand your comments, but I am looking at the Court order, and I feel compelled to follow the fact that we will deal with information since April of 2007."
The hearing proceeded with Johnson agreeing to speak only about conduct that had occurred since April 2007. The presiding commissioner prefaced the Board's consideration of evidence by emphasizing the evidentiary limitations: "In that we're precluded from, by Court order, from referencing the facts of the prior commitment as found in the Appellate Report or the Probation Report or the Prisoner's Version of the Crime before April 2007, and we are also compelled to deal with material only received after April of 2007[,] I will be unable to incorporate the commitment offense by reference, or the Prisoner's Version by reference, and I will not be able to incorporate prior criminality by reference because it is also all before April of 2007, and that moves us to social history, and I am again limited to information since April of 2007."
Contrary to the defense counsel's and the commissioner's characterizations, the superior court's order did not expressly limit the Board from considering evidence involving Johnson's pre-April 2007 conduct or circumstances, as long as the evidence was "new" to the Board. However, in our view, the superior court's order in this case suffers from the same flaw as those in Masoner, Weider and DeLuna because it allowed defense counsel and the presiding commissioner to overly restrict the Board's authority in making its parole decision on remand. As interpreted by defense counsel and the commissioner, the order prevented the Board from exercising its broad discretion and evaluating the inmate's parole suitability based on consideration of all of the mandatory regulatory factors, including "such factors as the inmate's 'past and present mental state;... behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control... and any other information which bears on the prisoner's suitability for release. (Cal. Code Regs., tit. 15 § 2402, subd. (b).)." (Masoner, supra, 172 Cal.App.4th at p. 1109.) As Masoner recognized, when the Board makes its assessment in accordance with the relevant statutory factors, it will "necessarily involve[] the Board's consideration of any relevant information that may have come to light between the time parole was denied and the time the superior court granted habeas relief." (Masoner, at p. 1109.) Here, the Board's decision on remand will necessarily evaluate all relevant information up to the time of the new parole reconsideration hearing, but it cannot be restricted to solely evidence arising after the initial parole hearing. In keeping with the limited judicial branch review over parole matters, the superior court cannot dictate how the Board should evaluate the evidence, nor can it prevent the Board from considering relevant and reliable evidence of circumstances or conduct occurring before April 2007 that the Board may not have considered at its prior initial parole hearing. (E.g. Portee, supra, 170 Cal.App.4th at pp. 111-112.)Under the separation of powers principles stated above, it was not for the superior court to dictate the evidence or analysis to be considered by the Board; the court is permitted only to vacate the Board's decision and direct it to "proceed in accordance with due process." (Rosenkrantz, 29 Cal.4th at p. 658; see also In re Ramirez, 94 Cal.App.4th at p. 572; DeLuna, supra, 126 Cal.App.4th at p. 598; In re Weider, supra, 145 Cal.App.4th at p. 590.)
We recognize that the Masoner decision may not compel the same conclusion we reach in this case. While the Masoner court found the superior court's order flawed and in violation of the separation of powers doctrine, it nevertheless directed the Board "to find Masoner suitable for parole unless new evidence of his conduct or a change in his mental state subsequent to his 2007 parole hearing supports a determination that he currently poses an unreasonable risk of danger to society if released on parole." (Masoner, supra, 172 Cal.App.4th at p. 1111; see also in In re Rico, supra, 171 Cal.App.4th at p. 689.) This aspect of the court's disposition could be interpreted as contradicting its prior recognition of the relevant statutory factors the Board is required to consider. (Masoner, at p. 1109 [emphasizing the Board must consider, among other factors, the inmate's past mental state, behavior before, during and after the crime and past attitude towards the crime], quoting Cal. Code Regs., tit. 15, § 2404, subd. (b).)
Rosenkrantz expressly compels this result. (Rosenkrantz, 29 Cal.4th at p. 658.) Since Rosenkrantz, the California Supreme Court has not squarely addressed the proper scope of habeas relief in this context, and we are compelled to abide by its instruction as to a court's proper habeas relief when the Board's decision "is devoid of a factual basis." (Ibid.) It remains the controlling authority on that question even after Lawrence, supra, 44 Cal.4th 1181, which involved review of the Governor's decision and only clarified the some evidence standard of review without addressing the scope of remedy on remand to the Board following the grant of habeas corpus relief.
We are not convinced by Gaul's resolution of this issue, on which Johnson relies. Gaul observed that in Lawrence, the Supreme Court affirmed the Court of Appeal's judgment, which ordered that the petitioner be released "forthwith" instead of returning the matter to the Governor to permit him to determine whether some other basis existed for denying parole. (Gaul, supra, 170 Cal.App.4th at p. 40.) It stated: "Although Lawrence involved the denial of parole by the Governor, not the Board itself, we understand the Supreme Court's affirmance of our judgment to mean, when the reviewing court has determined there is no evidence in the record that would support the denial of parole, there is no reason to order the Board to conduct any further hearing on the matter, at least in the absence of some new evidence about the inmate's post-hearing conduct." (Ibid.) Gaul cited Singler, supra, 169 Cal.App.4th 1227 and In re Burdan, supra, 169 Cal.App.4th 18 as support for its conclusion. But for the reasons expressed in Masoner in distinguishing In re Smith, supra, 109 Cal.App.4th 489 and Burdan (see part II(B) ante), Lawrence is not reasonably interpreted as addressing the proper remedy on remand to the Board, whose constitutional authority is "fundamentally different" from the Governor's limited authority. (Masoner, supra, 172 Cal.App.4th at pp. 1106, 1109; see also In re Vasquez (2009) 170 Cal.App.4th 370, 368 [Governor's constitutional authority is limited to a review of the evidence presented to the Board; this court vacated the Governor's decision to reverse the Board's order granting parole and reinstated the Board's parole release order].) And as we explained in part I(B) ante, Singler contains no persuasive analysis on the permissible scope of habeas remedy. We decline to follow Singler, Gaul, In re Burdan and In re Rico on this question.
Our analysis is not impacted by the fact that, on appeal, the Board accepts the superior court's finding that its decision was not supported by any evidence. On rehearing, the Board, unlike the Governor, can consider additional evidence (pre- or post-April 2007). (See In re Smith, supra, 109 Cal.App.4th at p. 507.) And the rule preventing a new trial on reversal for insufficient evidence is not applicable to parole decisions. (See Rosenkrantz, supra, 29 Cal.4th at p. 658.)
We accordingly hold that the superior court in this case was authorized only to remand the matter to the Board with directions that it vacate its decision and conduct a new hearing in accordance with due process of law. Any further judicial intrusion on the Board's power to take and evaluate the evidence is not in keeping with the separation of powers doctrine. Of course, to proceed in accordance with due process of the law does not mean that the Board can "disregard a judicial determination regarding the sufficiency of the evidence and to simply repeat the same decision on the same record." (Masoner, supra, 172 Cal.App.4th at p. 1110.)
We note that in the Board's April 23, 2009 decision, the presiding commissioner pointed to this court's prior unpublished opinion (People v. Johnson, supra, D049357) in which we quoted a defense forensic scientist's testimony that Johnson's blood alcohol level was "probably".05 to.09 percent at the time of the shooting. The presiding commissioner stated that had the Board been able to consider past information, it would have delved further into that evidence and would have asked for a backup sobriety plan. The commissioner's comment may lend support to respondent's concern, expressed at oral argument of this matter, that the Board might contrive facts at the new parole suitability hearing to reach a pretextual decision to deny parole, because at the time of Johnson's 1991 crime, anything below a.08 blood alcohol level was not sufficiently high to constitute a Vehicle Code section 23152, subdivision (b) offense. The Board is of course aware that pretextual findings do not comport with due process.
DISPOSITION
The matter is remanded to the superior court with directions to modify its order granting Patricia Johnson's petition for writ of habeas corpus. The order shall be modified to direct the Board of Parole Hearings to conduct a new parole suitability hearing in accordance with due process, including consideration of all relevant statutory factors as required by California Code of Regulations, title 15, section 2402, subdivision (b). As modified, the order is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.