Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. BH005781, Peter P. Espinoza, Judge.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Heather L. Bushman, Supervising Deputy Attorney General, and Ryan K. Schneider, Deputy Attorney General, for Appellant.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Respondent.
WILLHITE, J.
INTRODUCTION
This appeal is taken from an order of the superior court granting the petition for writ of habeas corpus of Michael Penniewell, a state prisoner, after Governor Arnold Schwarzenegger reversed the decision of the Board of Parole Hearings (the Board) granting Penniewell parole. Appellant, the warden of the prison where Penniewell is incarcerated, contends on appeal that the superior court’s order reinstating the Board’s grant of parole violated the Governor’s constitutional and statutory right to review the Board’s decisions, as well as the separation of powers doctrine. According to appellant, the only proper remedy is for this court to remand the matter to the Governor to proceed in accordance with the requirements of due process announced by the California Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis) filed after the Governor reversed the Board’s grant of parole. Appellant does not contest the superior court’s finding that there was no evidence to support the Governor’s decision that Penniewell was unsuitable for parole. Because we conclude that the superior court has the authority to reinstate the Board’s decision granting parole if it finds that there is no evidence supporting the Governor’s reversal of the Board’s decision, rather than remanding the matter to the Governor for further consideration, we affirm the superior court’s order reinstating the Board’s decision to grant parole.
FACTUAL AND PROCEDURAL BACKGROUND
When Penniewell was 17 years old, he and two crime partners robbed the victim, Jose Lopez, of his wallet, and then shot him. Lopez died three days later. Penniewell pleaded guilty to second degree murder and was sentenced to 15 years to life in prison. He began serving his state prison term on April 20, 1982. His minimum eligible parole date was October 15, 1989.
The Board found Penniewell suitable for parole in March 2005. The Governor reviewed the grant of parole and reversed the Board’s decision on July 26, 2005.
On April 5, 2006, the Board again found Penniewell suitable for parole. The Governor reviewed the Board’s decision and reversed it on September 1, 2006.
Penniewell filed a petition for writ of habeas corpus in April 2007, which was denied by the superior court. Thereafter, the California Supreme Court decided Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241, which modified the standard for parole suitability determinations.
Penniewell filed a new petition for writ of habeas corpus in February 2009. The superior court granted Penniewell’s petition on August 19, 2009, finding that the Governor’s decision to reverse the Board’s finding that Penniewell is suitable for parole was not supported by some evidence in the record of his posing a current risk of danger to society. The court noted that the Board found Penniewell had shown remorse and accepted responsibility for his offense, that his age reduced the probability of recidivism, and that he had realistic parole plans and had taken steps to secure employment if he is released on parole. Although Penniewell had prior arrests for relatively minor offenses before committing the life crime, he has spent over 27 years in prison, during which time he received seven administrative citations (115s), five of which dealt with his failure to report to work, and none of which involved violence. He is confined to a wheelchair because he has sickle cell anemia. He has taken numerous self-help classes while in prison, including Alcoholics Anonymous, conflict resolution, and anger management. He participated in therapy, as well as in extensive vocational training.
This appeal from the superior court’s order granting Penniewell’s petition and reinstating the Board’s grant of parole followed. We granted appellant’s petition for a writ of supersedeas to stay the superior court’s order, pending further order by this court.
DISCUSSION
The Attorney General contends on appeal that the superior court exceeded its authority and violated principles of the separation of powers by ordering Penniewell’s release, and instead it should have remanded the case to the Governor to clarify his decision under the current standard of review in accordance with Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241. It is important to note that the Attorney General does not challenge the superior court’s finding that there was no evidence in the record that Penniewell currently posed a danger to public safety. The Attorney General has thus forfeited any such argument.
Shortly after the respondent’s brief was filed in this matter, Division Three of this Appellate District filed its opinion in In re Masoner (2009) 179 Cal.App.4th 1531 (Masoner). The posture of that case was analogous to the one before us. The Board had granted Masoner parole, and the Governor reversed the Board’s decision. Thereafter, the Supreme Court decided Lawrence and Shaputis, and Masoner filed a petition for writ of habeas corpus. The superior court granted the petition and reinstated the Board’s decision granting parole. On appeal from the superior court’s order, the Attorney General in Masoner contended only that the remedy ordered by the superior court, reinstatement of the Board’s order, divested the Governor of his statutory and constitutional right to review the Board’s decisions, granted relief beyond the process due, and violated the separation of powers doctrine. (Masoner, supra, 179 Cal.App.4th at p. 1536.) We are in accord with the Masoner court in finding that “Where, as here, the superior court finds that there is no evidence supporting the Governor’s reversal of the Board’s decision granting an inmate parole, the superior court has the authority to reinstate the Board’s decision without remanding the matter to the Governor.” (Masoner, supra, 179 Cal.App.4th at p. 1534.)
I. The Standard Enunciated in Lawrence and Shaputis
As explained by the court in Masoner, supra, “In [In re]Rosenkrantz [(2002) 29 Cal.4th 616 (Rosenkrantz)], the Supreme Court held that the Governor’s decision granting or denying parole was subject to limited judicial review to determine whether the decision is supported by ‘some evidence.’ (Rosenkrantz, supra, 29 Cal.4th at p. 625.) This holding was affirmed in In re Dannenberg (2005) 34 Cal.4th 1061, 1084 (Dannenberg). Rosenkrantz and Dannenberg were clarified in Lawrence. There, the Supreme Court held that the standard of review of the Governor’s decision to deny an inmate parole was ‘whether “some evidence” supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.’ (Lawrence, supra, 44 Cal.4th at p. 1191.) The court rejected the Attorney General’s argument that the Governor’s decision to deny an inmate parole should be upheld if there was merely some evidence supporting the Governor’s characterization of the commitment offense as particularly egregious. (Ibid.) The court further stated: ‘[W]ith regard to the aggravated circumstances of a commitment offense, we conclude that to the extent our decisions in Rosenkrantz and Dannenberg have been read to imply that a particularly egregious commitment offense always will provide the requisite modicum of evidence supporting the Board’s or the Governor’s decision, this assumption is inconsistent with the statutory mandate that the Board and the Governor consider all relevant statutory factors when evaluating an inmate’s suitability for parole, and inconsistent with the inmate’s due process liberty interest in parole that we recognized in Rosenkrantz.’ (Ibid.)” (Masoner, supra, 179 Cal.App.4th at p. 1537, fn. 3.)
“[A]lthough the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.) “[T]he statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness.” (Id. at p. 1211.)
II. Reinstatement of the Board’s Decision Granting Parole Is a Proper Remedy
In the matter now before us, the Attorney General concedes that “the Governor appears to have reversed the Board based on the commitment offense alone.” In reversing the Board’s grant of parole, the Governor stated that “the gravity of the crime alone is enough to conclude at this time that his release from prison would pose an unreasonable public-safety risk.” The Governor did, however, also note Penniewell’s alleged lack of insight into his actions, unstable social history, inadequate parole plans, and institutional history.
Nevertheless, the Attorney General contends that, because the applicable standard of review was altered after the Governor made his parole decision, and his decision does not demonstrate that he applied the current standard of review, we should remand the matter to the Governor to clarify his decision under the revised standard. We disagree.
As pointed out by the court in Masoner, the disposition of Lawrence was not to remand the case to the Governor for reconsideration, as appellant seeks here; it was to reinstate the Board’s decision granting parole. Likewise, other Courts of Appeal have vacated the Governor’s reversal of the Board’s decision and reinstated the Board’s decision without remanding the matter to the Governor. (See In re Aguilar (2008) 168 Cal.App.4th 1479, 1491(Aguilar); In re Vasquez (2009) 170 Cal.App.4th 370, 387; In re Dannenberg (2009) 173 Cal.App.4th 237, 257.) The superior court’s disposition here is consistent with these cases and does not divest the Governor of his right to review the Board’s parole decisions. (Masoner, supra, 179 Cal.App.4th at p. 1538; see also In re Burdan (2008) 169 Cal.App.4th 18, 39.)
The Attorney General contends that failing to remand the matter to the Governor violates the separation of powers doctrine because the executive branch has the exclusive authority to determine parole suitability, while the judicial branch has limited authority to review a parole decision to ensure that the prisoner has received due process. (Citing Cal. Const., art. V, § 8, subd. (b); Pen. Code, §§ 3041-3041.2, 5054, 5077; Rosenkrantz, supra, 29 Cal.4th at p. 659.) Although a judicial determination of due process necessarily contemplates an evaluation of the record, the ultimate discretionary decision of parole suitability remains with the executive branch. (Lawrence, supra, 44 Cal.4th at p. 1212.) The Attorney General notes that in Rosenkrantz, supra, 29 Cal.4th 616, the Supreme Court stated that remand to proceed in accordance with due process is the proper remedy when a Board decision denying parole is not supported by some evidence. Although Rosenkrantz involved a parole decision by the Board rather than the Governor, the Attorney General argues that “This Court should apply this standard to the Governor because the power to grant and revoke parole is vested exclusively in the executive branch through the Board and the Governor.”
The Attorney General’s contention that we should remand this matter to the Governor to permit him to proceed in accordance with due process was squarely rejected by the court in Masoner. The analysis enunciated by the court in Masoner applies here and refutes the contention. (See Masoner, supra, 179 Cal.App.4th at p. 1539.) “In this case, the superior court vacated the Governor’s, not the Board’s, decision. This is a critical difference. ‘Although the Board can give the prisoner a new hearing and consider additional evidence, the Governor’s constitutional authority is limited to a review of the materials provided by the Board.’ (In re Smith (2003) 109 Cal.App.4th 489, 507; accord [In re] Masoner I, [(2009)] 172 Cal.App.4th [1098] at p. 1106.) Remanding the matter to the Governor would be an idle act because the Governor has already reviewed the materials provided by the Board and, according to the superior court’s unchallenged order, erroneously concluded that there was some evidence in those materials to support a reversal of the Board’s decision. (See In re Smith, at p. 507; Aguilar, supra, 168 Cal.App.4th at p. 1491.)” (Masoner, supra, 179 Cal.App.4th at p. 1538.) Here too, the superior court’s conclusion that the record reviewed by the Governor did not contain some evidence to support reversal of the Board’s decision, is unchallenged on appeal. Suffice it to say that we agree with the court in Masoner that reinstatement of the Board’s grant of parole is a proper remedy. “The remedy provided here does not infringe on the core functions of the Governor or on the Governor’s specific authority to review the Board’s parole suitability decisions.... [T]he Governor has already reviewed the Board’s 200[6] decision.” (Id. at p. 1539.) Indeed, the rule proposed by appellant, that remand to the Governor is the only proper remedy, “would entitle the Governor to repeatedly ‘reconsider’ the release of the prisoner no matter how many times the courts found that there was no evidence that the prisoner was currently dangerous. Such a rule would violate principles of due process and eviscerate judicial scrutiny of the Governor’s parole review decisions.” (Id. at p. 1540.) The superior court acted well within its authority in reinstating the Board’s decision to grant parole and declining to remand the matter to the Governor.
Appellant’s reliance on In re Criscione (2009) 173 Cal.App.4th 60 is inapt for the same reason. There, the Board did not articulate any nexus between the factors upon which it relied and its conclusion that the prisoner posed a current risk of danger to society, and the appellate court determined that remand to the Board to reconsider in light of Lawrence and Shaputis was warranted. (Id. at pp. 74-75, 77.)
DISPOSITION
The order of the Superior Court of Los Angeles County entered August 19, 2009, granting Penniewell’s petition for a writ of habeas corpus, reinstating the Board’s decision of April 5, 2006, vacating the Governor’s reversal of the Board’s grant of parole, and releasing Penniewell from prison, is affirmed. The stay of the superior court’s August 19, 2009 order is lifted. In the interests of justice, this opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.387 (b)(3)(A).)
We concur: EPSTEIN, P. J.SUZUKAWA, J.