Opinion
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144 Cal.App.4th 935b __ Cal.Rptr.3d __ In re WEN LEE on Habeas Corpus. B188831 California Court of Appeal, Second District, Eighth Division November 14, 2006Los Angeles County Super. Ct. No. BH 003579
ORDER MODIFYING OPINION
THE COURT:
The opinion filed in the above entitled matter on October 17, 2006, (143 Cal.App.4th 1400, ___Cal.Rptr.3d__ ) is modified as follows:
On page 1, [143 Cal.App.4th 1403, advance report, 3d par., line 17], after Roger S. Hanson add “; Law Offices of Michael Satris and Michael Satris,” so that it reads “Roger S. Hanson; Law Offices of Michael Satris and Michael Satris, for Petitioner.”
On page 8, line 3, [143 Cal.App.4th 1408, advance report, 3d par., line 27], after the sentence “The test is not whether . . . .” insert a footnote that reads: “Courts show great deference to the Governor in determining whether some evidence exists. Since voters in 1988 enacted Article V, section 8, subdivision (b) of the state constitution empowering the Governor to review the board’s decisions, we know of only two cases that have overturned a governor’s reversal of the board’s granting of parole and ordered a prisoner’s release. One was In re Scott (2005) 133 Cal.App.4th 573 [34 Cal.Rptr.3d 905] , which involved a then-64 year old defendant with no significant criminal history who 18 years earlier murdered his wife’s lover who supported the wife’s drug addiction by giving her drugs. The Scott court aptly described the murder as happening under ‘extreme stress caused by an unusual combination of circumstances unlikely to recur.’ (Id. at pp. 579-580, 601.)
“The second was In re Smith (2003) 109 Cal.App.4th 489 [134 Cal.Rptr.2d 781] . The appellate court’s task in Smith was largely driven by the governor’s numerous misconceptions about Smith and his offense. The governor’s statement denying parole stated, for example, that Smith and an accomplice beat and shot their murder victim before dragging him to a creek where they held him underwater until he drowned; in fact, Smith did not beat, drag, or drown the victim. (Smith at p. 504.) The statement also said Smith was convicted of second degree murder while armed with a firearm; in fact, he was convicted of second degree murder while a principal was armed, there
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being no evidence he was himself personally armed. By the Smith court’s count, the governor’s statement contained at least seven more clear factual errors in addition to the two we have highlighted.”
Page 10, second bullet, 5th line, [143 Cal.App.4th 1410, advance report, 3d par., line 11], replace “leaving” with “left” so that the quote reads “into a bathtub full of water, . . . or at least left it there without assisting her until she was dead.”
Page 12, at the end of footnote 4, [143 Cal.App.4th 1412, advance report, 3d par., line 39], add the following citation “(114 Cal.App.4th at pp. 374-375.).”
Page 16, line 9, [143 Cal.App.4th 1414, advance report, 3d par., line 31], delete all parenthetical citations and replace with: “(In re Scott, supra, 133 Cal.App.4th at pp. 603-604 [ordering immediate release instead of remand where no evidence supported denying parole]; In re Smith, supra, 109 Cal.App.4th at p. 507 [same]; cf. Rosenkrantz, supra, 29 Cal.4th at pp. 658, 664-666, 667-669 [remand proper to permit reconsideration of denial of parole if record does not support stated reasons for denial but other evidence overlooked in the record arguably could]; In re Smith, supra, 114 Cal.App.4th at pp. 374-375 [remanded matter to governor to conduct new hearing after he relied on insufficient evidence to reverse board]; In re Capistran (2003) 107 Cal.App.4th 1299, 1306-1307 [132 Cal.Rptr.2d 872] [same].)”
[End of modification.]
There is a change in judgment to add citations.