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California Lifer’s Governor-Parole-Reversal Tossed by State Court

California Lifer's Governor-Parole-Reversal Tossed by State Court

by Marvin Mentor

A decision by Governor Schwarzenegger to reverse the Board of Parole Hearing's (BPH) grant of parole to an infirm, 82-year-old lifer was itself reversed by the California Court of Appeal. The Second Appellate District found that there was not "some evidence" that the crimes were "atrocious," and rejected the Governor's holding that the prisoner's late acceptance of responsibility justified denial of parole.

Wen Lee pleaded guilty in 1989 to second degree murder and attempted premeditated murder, with two firearm enhancements. He was sentenced to concurrent terms of 17 years to life for the murder and 7 years to life for the attempt. In 2005 the BPH found him suitable for parole, noting his psychological reports of "little risk of recidivism" and "very low risk of violence in the community." The Governor reversed the BPH, saying that Lee's crimes were "atrocious" and beyond "the minimum necessary to sustain" his convictions. Additionally, the Governor said that Lee's acceptance of responsibility was "too recent."

The court noted that Lee's prison record was spotless and that he suffered total disability from diabetes, heart disease, blindness and being wheelchair-bound. Lee's life expectancy was estimated at perhaps one year. In any event, if Lee was paroled he would be deported to his native China.

The court focused on Lee's current propensity for dangerousness. Importantly, it concluded that denial of parole must stem not from evidence supporting the Governor's "reasons" per se, but rather must devolve from evidence in the record that Lee's release would "unreasonably endanger[] public safety." Looking to the record, the court first found that Lee's crimes were not particularly "atrocious"; that is, they were "more commonplace than egregious," and that his conduct was no more than necessary to commit his crimes. As to the timing of his acceptance of responsibility, the court held that "[s]o long as Lee genuinely accepts responsibility, it does not matter how longstanding or recent it is."

Accordingly, the appellate court granted Lee's habeas petition and ordered that he be released rather than have his case resubmitted to the Governor, citing In re Scott 133 Cal.App.4th 573, 34 Cal.Rptr.3d 905 (Cal.App. 1 Dist. 2005). Lee was in fact subsequently paroled. See: In re Lee, 143 Cal.App.4th 1400, 49 Cal.Rptr.3d 931 (Cal.App. 2 Dist. 2006).

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Related legal case

In re Lee