Board of Prison Terms v. Superior Court

31 Cal.Rptr.3d 70

130 Cal.App.4th 1212

The BOARD OF PRISON TERMS, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent;

Viet Mike Ngo, Real Party in Interest.

The Board of Prison Terms, Petitioner, v. The Superior Court of Santa Clara County, Respondent;

Rolando Gaoiran, Real Party in Interest.

The Board of Prison Terms, Petitioner, v. The Superior Court of Santa Clara County, Respondent;

Daniel Bettencourt, Real Party in Interest.

THE BOARD OF PRISON TERMS, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent;

Donald Ray Lewis, Real Party in Interest.

No. H027848.

No. H028006,

No. H028022.

No. H028070.

Court of Appeal, Sixth District.

July 5, 2005.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Frances T. Grunder, Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Virginia I. Papan, Elizabeth S. Kim, Song J. Hill and Denise A. Yates, Deputy Attorneys General, for Petitioner.

No appearance by Respondent.

Keith Wattley, under appointment by the Sixth Appellate Program, for Real Parties in Interest Viet Mike Ngo, Rolando Gaoiran.

Heather MacKay, under appointment by the Sixth Appellate Program, for Real Parties in Interest Daniel Bettencourt, Donald Ray Lewis.

BAMATTRE-MANOUKIAN, Acting P.J.

I. INTRODUCTION

In these original proceedings, the Board of Prison Terms (Board) seeks extraordinary relief from the superior court's orders to show cause issued in the habeas corpus proceedings pertaining to Viet Mike Ngo (In re Ngo on Habeas Corpus, case No. 127611), Rolando Gaoiran (In re Gaoiran on Habeas Corpus, case No. 105491), Daniel Bettencourt (In re Bettencourt on Habeas Corpus, case No. 79903), and Donald Ray Lewis (In re Lewis on Habeas Corpus, case No. 68038.) The Board contends that the superior court exceeded its jurisdiction when it issued orders to show cause that require the Board to respond to claims not expressly raised in the habeas corpus petitions. The Board also contends that the superior court exceeded its jurisdiction when, on its own motion, it incorporated a discovery order in the orders to show cause in the Ngo and Gaoiran cases. The discovery orders require the Board to produce the decision pages for all of the several thousand Board parole suitability hearings that were held in 2003.

For reasons that we will explain, we will issue peremptory writs of mandate vacating the orders to show cause and the discovery orders and directing the superior court to reconsider its rulings in accordance with the views expressed in this opinion.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Board filed writ petitions seeking extraordinary relief from the superior court's orders to show cause issued in the habeas proceedings pertaining to Viet Mike Ngo (In re Ngo on Habeas Corpus, case No. 127611), Rolando Gaoiran (In re Gaoiran on Habeas Corpus, case No. 105491), Daniel Bettencourt (In re Bettencourt on Habeas Corpus, case No. 79903), and Donald Ray Lewis (In re Lewis on Habeas Corpus, case No. 68038) (collectively, real parties in interest or real parties). Since the four writ petitions similarly challenge the superior court's authority to issue an order to show cause that requires the Board to respond to claims not expressly raised in the habeas corpus petition, we ordered that these original proceedings be considered together for purposes of an order to show cause, briefing, oral argument, and decision. We also stayed all superior court proceedings while our writ review was pending. A brief summary of the factual and procedural background of each matter follows.

A. The Ngo Matter (H027848)

In 1988, when he was 18 years old, Viet Mike Ngo killed a 14-year-old boy in a drive-by shooting. While a passenger in an automobile traveling on Highway 101, Ngo fired four bullets into a nearby vehicle, striking and fatally injuring the victim. Ngo pleaded guilty to second degree murder (Pen.Code, § 187)¹ in 1989, and he was sentenced to 15 years to life in prison.

Parole Board Decision

The Board held a parole suitability hearing on October 7, 2003. At the conclusion of the hearing, the Board issued a two-year denial of parole suitability. The denial was based on the Board's finding that Ngo's release from prison would pose an unreasonable risk of danger to public safety, in light of the especially cruel and callous nature of the murder and Ngo's inexplicable motive. The Board also determined that Ngo was unsuitable for parole based on his escalating pattern of criminal conduct and his need for additional prison programming.

Habeas Corpus Petition

Ngo filed a petition for writ of habeas corpus in propria persona in the superior court in which he challenged the Board's denial of parole. The habeas corpus petition states the following 11 issues: "1. The Board failed to apply the statutory requirements of Penal Code [section] 3041. [¶] 2. His Due Process Rights were violated by the Board's failure to set a term, abide by the term set at his Initial Parole Consideration Hearing and consider the crime as no more than a Second Degree Murder. [¶] 3. The Board improperly and arbitrarily characterized [Ngo's] crime as being carried out in `an especially cruel and callous manner' and `in a dispassionate and a calculated manner.' The Board violated the contractual plea bargain entered into by [Ngo] and the State of California whereby he pled guilty to a Second Degree Murder. Moreover the Board ignored the evidence which disputes a finding that the crime was calculated. [¶] 4. That there was no evidence before the Board that [Ngo] now presents a danger to society. [¶] 5. There was no evidence underlying the reasons the [Board] panel gave for finding [Ngo] unsuitable for parole, nor was there evidence in the record to support a finding that it would be unreasonable to expect that parole would be granted at a hearing during the next two years. [¶] 6. The Panel was operating under a `no-parole' policy and its decision was based on political considerations and a policy put into effect by then Governor Davis. [¶] 7. The Panel's decision was arbitrary and capricious and ignored or minimized [Ngo's] rehabilitative efforts and gains. The Panel's recommendations regarding necessary programming lack any basis in the record for their purported `need.' [¶] 8. The Board improperly used dismissed, unproven, and unsubstantiated charges and an administrative rules violation as reasons to find [Ngo] unsuitable for parole. [¶] 9. The Board's finding that the motive for [Ngo's] crime was inexplicable is arbitrary and capricious and ignores the record in this case. [¶] 10. The Board's finding that [Ngo's] behavior is unpredictable was based on allegations against him which were unproved or dismissed and on what the Panel termed mere `suspicions'. The finding is thus arbitrary and capricious and violated [Ngo's] Due Process and Equal Protection Rights. [¶] 11. The Life Prisoner Evaluation Report prepared by Counselor Kirkpatrick improperly assessed [Ngo's] violence potential based on unproved, unsubstantiated and dismissed allegations. [¶] 12. The evaluation by Counselor Kirkpatrick exceeded authority granted to Correctional Counselors by the Department's Administrative Manual. The Board improperly used this assessment and report."

In his points and authorities in support of the habeas corpus petition, Ngo also argued that the Board violated due process by denying parole to approximately 98 percent of inmates, although section 3041, subdivision (a), provides that the Board "shall normally set a parole release date." Further, Ngo claimed that the Board's failure to fix his prison term at a number of years proportional to his crime violated his federal due process rights.

Order to Show Cause

On August 4, 2004, the superior court issued an order requiring the Attorney General, as attorney for the Board, to show cause why Ngo was not entitled to the relief sought in his habeas corpus petition. The order included the following statement of the issues: "It appears the Board has recharacterized the crime as first degree murder and that is the basis of its decision to deny parole. In the habeas corpus petition of Peter Honesto, [case No.] 98079, this Court explained in detail why this, apparently routine, Board action violates the due process clause. The Honesto order will be attached to this order and Respondent should address the cases and analysis discussed therein as they are identically applicable here."

The "Honesto order" attached to the order to show cause is the order granting the petition for writ of habeas corpus in In re Honesto, case No. 98079, filed April 13, 2004 (hereafter, the Honesto order). The 14-page Honesto order remanded the matter to the Board for a new hearing on the ground that the Board had erred in recharacterizing Honesto's crime as first degree murder in violation of Honesto's plea to second degree murder. The superior court also determined that the evidence did not support the Board's unsuitability findings of unstable social history, arrest record, lack of letters of support, and insufficient participation in self-help programs. Further, the Honesto order included the superior court's ruling that "the Board's procedures and methods, which amount to nullification of pleas, violate the constitutional right to due process. It is not a viable answer for Respondent to suggest that their procedures and methods allow such an action."²

In its order to show cause in the Ngo case, the superior court made the following statement in addition to incorporating its ruling in the Honesto case: "[T]he Board is operating with a policy of bias and a predetermination to deny parole to all but the most stellar candidates after they have already exceeded their matrix time ... [Ngo] `contends that as a matter of law and logic a parole granting rate of two-percent by the Board fails to comply with the mandate of Penal Code...