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California: Lifer Entitled to Credit for Time Served Following Governor’s Erroneous Veto of Parole Grant

Vacating an earlier ruling, on June 29, 2012 the California Court of Appeal, Sixth District, held that while a life-sentenced prisoner is entitled to credit for time served following the governor’s erroneous veto of a decision by the Board of Parole Hearings (BPH) to grant him parole, he is not entitled to such credit for an erroneous denial of parole by the BPH itself.

Johnny Lira was sentenced to 15 years to life following his second-degree murder conviction for shooting his wife to death. He entered prison in 1981 and became eligible for release in 1992.

After being found unsuitable for parole at his ninth parole hearing in December 2005, Lira petitioned for habeas corpus relief. The Santa Clara County Superior Court found that the denial of parole was not supported by sufficient evidence and ordered a new hearing. The new parole hearing was held in November 2008 and resulted in a finding that Lira was suitable for parole. Then-Governor Arnold Schwarzenegger vetoed that decision in April 2009, finding that Lira would pose a danger to society if released. Lira filed a petition challenging the governor’s veto.

Meanwhile, at a subsequent BPH hearing in November 2009, Lira was again found suitable for parole. When current Governor Jerry Brown declined to review that decision, Lira was released on parole effective April 8, 2010.

He then filed a supplemental petition seeking immediate discharge from parole, claiming that he was entitled to four years’ credit for his “unlawful” incarceration that resulted, first, from the erroneous denial of parole by the BPH in December 2005, and second, due to Governor Schwarzenegger’s allegedly erroneous April 2009 veto of the BPH’s subsequent grant of parole.

The Court of Appeal agreed only as to the second part of Lira’s claim.

In a lengthy ruling, the appellate court initially found that Lira’s challenge to Governor Schwarzenegger’s veto was not moot, even though Lira had since been released on parole, as he was seeking to have the credit for time served after the veto applied to his parole term, which was part of his overall “term of imprisonment.”

Addressing Lira’s entitlement to credits, the Court of Appeal noted that the lifetime parole requirement of Penal Code section 3000.1 did not apply to prisoners (like Lira) convicted of a murder that occurred before 1983. Disagreeing in part with In re Bush, 161 Cal.App.4th 133, 74 Cal.Rptr.3d 256 (Cal.App. 1 Dist. 2008), the appellate court held that continued incarceration following judicial reversal of a BPH finding of unsuitability is “lawful,” while such incarceration following an erroneous gubernatorial veto of a BPH finding of parole suitability is “unlawful.”

The Court of Appeal then methodically examined the circumstances surrounding Lira’s crime and Governor Schwarzenegger’s justifications for his veto, and found that “Lacking even a modicum of evidentiary support, the Governor’s veto was arbitrary and violated Lira’s right to due process.”

Consequently, the appellate court held that the “superior court erred in finding Lira entitled to credit for his continued incarceration up to November 2008”; however, he was entitled to receive credit for “the time Lira served after November 2008 due to the Governor’s veto,” because “if a gubernatorial veto is not supported by some evidence, it is unlawful because it violates the inmate’s right to procedural due process.” The Court of Appeal declined to grant Lira postconviction conduct credits for time served after the erroneous gubernatorial veto.

The California Supreme Court granted review of the appellate opinion in this case on October 17, 2012, but has not yet issued a ruling. See: In re Lira, 143 Cal.Rptr.3d 491 (Cal.App. 6 Dist. 2012), review granted.

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Related legal case

In re Lira