California: On Remand, Governor Must Consider All Available Information Relating to Current Dangerousness
The California Court of Appeal has held that when, on remand after the granting of a petition for writ of habeas corpus, the Governor reconsiders whether or not a life prisoner is suitable for parole, he is not restricted to consideration only of evidence that was before the Board of Parole Hearings when it originally found the prisoner suitable for release on parole.
In 2006, after the Board found life prisoner Timothy Ross suitable for parole, the Governor reversed the Board’s decision. In a published decision, the Court of Appeal granted Ross’s petition for a writ of habeas corpus. (See In re Ross (2009) 170 Cal.App.4th 1490.) It did so not because there was no evidence to support the Governor’s decision, but rather primarily because the decision, issued prior to the Supreme Court’s decision in In re Lawrence (2008) 44 Cal.4th 1181, lacked an “explicit ‘articulation of a rational nexus between th[e] facts and current dangerousness’” (as Lawrence, which purported merely to clarify existing law rather than to change it, requires). Ross at p. 1497.
On remand, the Governor was directed to reconsider the matter consistent with the standards articulated in Lawrence.
Meanwhile, in 2008, Ross had a subsequent parole consideration hearing at which a new psychological evaluation -- containing several findings not helpful to Ross’s cause -- was entered into the record. The Governor relied in part on that new psychological evaluation when, in April 2009, he again reversed the Board’s 2006 parole decision.
In a subsequent habeas petition, Ross challenged the Governor’s reliance on the 2008 psychological evaluation because it was evidence that had not been before the 2006 Board. The Court of Appeal rejected that argument, reasoning that, pursuant to Lawrence, the relevant test is always current dangerousness. Because “public safety is the overarching consideration for both the Board and the Governor” (Lawrence at p. 1209), the Governor must, in determining whether a life prisoner should be released from prison, consider all information provided to him by the Board -- regardless whether that information was available to the Board that originally granted parole. Two factors qualify this holding: first, it applies only to a proceeding “on remand”; and second, the prisoner must, pursuant to Pen. Code, § 3041.5, subd. (a) (1), have had an opportunity to respond to the information provided to the Governor (as Ross indeed had, when he had his subsequent parole consideration hearing in 2008). See: In re Ross, 185 Cal.App.4th 636 (2010).
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Related legal case
In re Ross
|Cite||185 Cal.App.4th 636 (2010)|
|Level||State Court of Appeals|