Opinion
G045460 Super. Ct. No. M13855
10-28-2011
JAMES ROBERT MARVIN, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Deborah A. Kwast, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Denise Gragg, Assistant Public Defender, and Melani Bartholomew, Deputy Public Defender, for Petitioner. No appearance for Respondent . Kamala D. Harris, Attorney General, and Phillip Lindsay, Deputy Attorney General, for Real Party in Interest .
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINON
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Thomas M. Goethals, Judge. Petition granted.
Deborah A. Kwast, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Denise Gragg, Assistant Public Defender, and Melani Bartholomew, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Kamala D. Harris, Attorney General, and Phillip Lindsay, Deputy Attorney General, for Real Party in Interest. THE COURT:
Before O'Leary, Acting P. J., Aronson, J., and Ikola, J.
In 2010, the Board of Prison Hearings made a finding that petitioner, James Robert Marvin, is suitable for release on parole. After the Governor reversed the Board's finding, Marvin filed a petition for a writ of habeas corpus. The superior court granted the petition and ordered the Board's finding of suitability reinstated and the case remanded to the Governor for further consideration. Marvin contends that after the court reinstated the Board's decision, the court exceeded its authority when it remanded the matter back to the Governor for reconsideration. We agree. The petition is granted.
Hereinafter referred to as the Board
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FACTS
The underlying facts of Marvin's conviction are not in dispute and not relevant to the proceedings in this case. It is sufficient to note that in 1981, a jury convicted Marvin of first degree murder and conspiracy to commit murder. Personal use of a deadly weapon was also found true and Marvin was sentenced to 26 years to life. In a subsequent parole suitability hearing in 2010, the Board made a finding that Marvin is suitable for release on parole. Later the same year, Governor Schwarzenegger reviewed and then reversed the Board's finding that Marvin no longer represents a current danger if released on parole. Marvin filed a petition for a writ of habeas corpus in the superior court that alleged the Governor's decision reversing the Board's finding is without reliable evidentiary support that he poses a current threat to public safety if released on parole. The superior court agreed with Marvin's claim and in its order stated "[t]here is no reliable evidence to support the Governor's decision to overrule the Board's grant of parole." But instead of simply reinstating the Board's finding that Marvin is suitable for release, the superior court also remanded the matter "back to the Governor who, at his discretion, may review the Board's decision and issue a new determination under his constitutional and statutory authority and in accordance with the requirements of due process as established in In re Lawrence [ ]."
This court filed an order advising the parties that it was considering treating the petition for a writ of habeas corpus as a petition for a writ of mandate, invited real party in interest to file an informal response, and cited Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180. In response to this court's invitation, the Attorney General filed an informal response electing not to challenge the merits of the petition and instead urges the court to deny the petition on procedural grounds. We disagree with the Attorney General's procedural claims and grant the petition.
DISCUSSION
In In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), the Supreme Court agreed the record failed to support the Governor's conclusion that Lawrence remained a current danger to public safety. The Supreme Court "affirm[ed] the judgment of the Court of Appeal rendered in favor of petitioner," (Id. at p. 1191) which "vacat[ed] the Governor's reversal and reinstat[ed] the Board's . . . grant of a parole release to petitioner." (Id. at p. 1190.) As noted in In re Ryner (2011) 196 Cal.App.4th 533 (Ryner), when the Supreme Court in Lawrence affirmed the judgment of the Court of Appeal that had ordered the inmate's immediate release without return to the Governor for further consideration, "we must conclude that return to the Governor is not the appropriate remedy." (Id. at p. 552.) This court reached the same conclusion as Ryner in In re Gomez (2010) 190 Cal.App.4th 1291, 1310-1311 (Gomez), that "'"[W]here, as here, it is determined there is not 'some evidence' in the record to support the Governor's decision to overrule the Board's grant of parole, the proper remedy is to vacate the Governor's decision and to reinstate that of the Board." [Citation].'" (Ryner, at p. 553.)
We interpret the Attorney General's failure to address the merits of the petition as a concession to Marvin's claim that the superior court exceeded its authority when it remanded the matter to the Governor for reconsideration. Instead, the Attorney General advocates that relief should be denied because a petition for a writ of habeas corpus is not an available remedy to review a superior court order, and any review at this point is untimely and moot.
According to the Attorney General, because the petition seeks relief on the basis that the superior court acted in excess of its jurisdiction, mandate is the appropriate remedy for relief, not a petition for a writ of habeas corpus. Although mandate is probably the preferred method of relief in this case because if offers a quicker path to relief, a petition for a writ of habeas corpus is also an appropriate remedy in this case. "Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint." (Pen. Code, § 1473, subd. (a).) In this case, when Marvin remained in custody contrary to the remedy provided by the Supreme Court's holding in Lawrence and this court's decision in Gomez, supra, 190 Cal.App.4th at pp. 1310-1311, Marvin was entitled to seek relief by filing a petition for a writ of habeas corpus to challenge the legality of his continued imprisonment.
Despite the type of petition filed by Marvin, "[t]he label given a petition, action or other pleading is not determinative; rather, the true nature of a petition or cause of action is based on the facts alleged and remedy sought in that pleading." (Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 511.) In this case, because Marvin is entitled to relief, this court exercises its discretion to treat the petition for a writ of habeas corpus as a petition for a writ of mandate. (People v. Picklesimer (2010) 48 Cal.4th 330, 335.)
With respect to timeliness, the Attorney General argues that even if the court construes the petition as seeking relief in mandamus, as this court's Palma notice indicated it would, the petition is untimely and moot. Citing People v. Superior Court (Brent) (1992) 2 Cal.App.4th 675, 682 as support, the Attorney General contends a petition not filed within 60 days from the challenged order is untimely, and "[a] petition filed near the end of the 60-day period, . . . may be denied as untimely if the petitioner delayed in the filing of his or her petition to the real party in interest's prejudice." The Attorney General states that "[u]nder the circumstances, Marvin's 49-day delay is unreasonable and prejudicial to the Governor, who has already complied with the superior court's order" when he reviewed and again reversed the Board's decision a second time. The Attorney General asks this court not to consider Marvin's "belated and procedurally defective writ petition" because it "would encourage parties to wait until the Governor complies with the superior court's order with the hope that the Governor will not deny parole a second time, and then to collaterally challenge the Governor's decision should he deny parole by way of a petition for writ of mandate under the auspices that the superior court erred in its remedy."
We think the better approach is to order the superior court to follow the law as stated in Lawrence, Gomez, and Ryner. Although the Governor may have performed an idle act when he complied with the superior court's order, we fail to see how the Governor was prejudiced, especially since Marvin is the party who has been confined in custody since the superior court exceeded its authority and remanded the case back to the Governor.
The Governor had the opportunity to review the Board's finding in 2010. On review, the superior court determined there was no reliable evidence to support the Governor's decision. The Governor is not permitted an unlimited number of opportunities to review the Board's parole decision and arbitrarily detain a prisoner indefinitely in such a piecemeal manner. (In re Masoner (2009) 179 Cal.App.4th 1531, 1540.)
DISPOSITION
For the forgoing reasons, the court treats the petition for a writ of habeas corpus as a petition for a writ of mandate. Having given the parties notice pursuant to Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d 171, 180, the petition for a writ of mandate is GRANTED. The superior court is ordered to vacate the portion of its order filed May 13, 2011, remanding the matter back to the Governor. The superior court is ordered to transmit forthwith a copy of the corrected minute order to the parties and the Department of Corrections and Rehabilitation.
In the interest of justice, the opinion in this matter is deemed final forthwith. (Cal. Rules of Court, rule 8.490(b)(3).)