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California Appellate Court Vacates Governor’s Reversal of Lifer’s Parole Grant

by John E. Dannenberg

The California Court of Appeal, Fourth District, vacated Governor Schwarzenegger’s reversal of a murderer’s grant of parole and reinstated parole. A majority of the court found that there was no evidence showing that the prisoner’s crime demonstrated his current dangerousness; a concurring justice rejected this test, but found that because the crime was no more violent that the minimum necessary to sustain the conviction, joined in the judgment.

Nicomedes Viray, while intoxicated at a party in 1982, stabbed his victim in an altercation and was convicted of second degree murder. Although he had a marijuana-possession disciplinary in 1983, he remained disciplinary-free for over twenty years. He earned a GED plus completed several vocational trades and seven self-help rehabilitation programs. His psychological reports were clean. In 2006, he was granted parole, subject to the Governor’s review. As he does in about 900 of such reviews now, the Governor reversed the grant by taking a different view of the facts.

Upon Viray’s habeas petition, the appellate court vacated the Governor’s decision. It found that although the crime was vicious, it was no more violent than the minimum necessary to sustain a conviction of the crime. Of particular note, the court also disagreed with the Governor’s dependence on the District Attorney’s objection to Viray’s parole. The court held that that objection was only argument, not “evidence,” citing People v. Breaux, 1 Ca1.4th 281, 313 (1991) [“it is axiomatic that argument is not evidence.”]

The majority agreed with the line of recent appellate cases that the question upon a Governor’s reversal is not whether there was “some evidence” of the elements of the crime, but whether there was “some evidence” that the crime itself made the prisoner currently an unreasonable risk of danger if released. (This standard is currently under review in the California Supreme Court.) See: In re Viray, 2009 WL 131999 (Cal.App. 4 Dist.) (2008).

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Related legal case

In re Viray