In re Johnson, D054592 (Cal. App. 8/25/2009)

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In re PATRICIA JOHNSON on Habeas Corpus.

D054592

Court of Appeals of California, Fourth Appellate District, Division One

August 25, 2009

Not to be Published in Official Reports

Appeal from an order of the Superior Court of San Diego County, No. HCN0996, Joan P. Weber, Judge. Remanded with directions.

O'ROURKE, J.

Dawn Davison, Warden of the California Institution for Women at Corona, appeals from a superior court order granting habeas corpus relief to petitioner Patricia Johnson. In its order, the superior court directed the Board of Parole Hearings (Board) to conduct a new parole eligibility hearing and find Johnson suitable for parole "unless new evidence or information comes to light." The court also ordered that statements by the victim's next of kin would "not appear to be relevant or admissible at the rehearing" unless they involved Johnson's conduct since Johnson's initial parole hearing in April 2007 (the April 2007 hearing). Appellant contends the superior court's order limiting consideration of victim family statements violates the California Constitution as well as Penal Code section 3043. Appellant further contends that because the power to grant and revoke parole is vested exclusively in the executive branch, the only permissible remedy the superior court may order following the grant of habeas corpus is to remand the matter to the Board to proceed in accordance with due process.

While appellant's first point is arguably moot for reasons explained below, we exercise our discretion to address it given its importance and conclude that the superior court's order restricting the Board's consideration of victim family member statements to information pertaining to Johnson's conduct after April 2007 is in excess of jurisdiction and unenforceable. We further conclude the superior court exceeded its authority to the extent it restricted the Board's consideration of evidence in deciding Johnson's parole suitability to evidence of circumstances or conduct occurring after April 2007. We remand the matter with directions set forth below.

PROCEDURAL BACKGROUND

Because the present appeal is limited to the form of relief granted by the superior court, we need not set out the facts of Johnson's commitment offense (which this court summarized in People v. Johnson (May 16, 2008, D049357) [nonpub. opn.].) In 1991, Johnson was convicted of first degree murder and sentenced to an indeterminate term of 29 years to life in state prison. In 2006, following a retrial, Johnson was convicted of second degree murder and sentenced to a term of 18 years to life. In April 2007, Johnson had her first parole suitability hearing. The Board found Johnson would pose an unreasonable risk of danger to society or a threat to public safety based "first and foremost" on the nature of her commitment offense. It denied parole for three years.

Johnson filed a petition for writ of habeas corpus challenging the Board's decision. The superior court granted the petition, finding the Board had refused to consider certain mitigating evidence and there were no facts to support the Board's findings as to the factors on which it relied (that the offense was carried out with exceptionally callous disregard for human suffering and its motive was inexplicable or very trivial in relation to the offense). It ordered the Board to conduct a new parole eligibility hearing and grant Johnson a parole date "unless new evidence or information comes to light." On appellant's request, the court later modified its order to allow the Board to schedule the hearing so as to give the victim's next of kin notice of the hearing if they so requested. In doing so, the court, following In re Singler (2008) 169 Cal.App.4th 1227 (Singler), stated: "Unless the statements by the victim's family would somehow involve Petitioner's conduct since the April 2007 hearing, the victim's family's statements would not appear to be relevant or admissible at the rehearing. As such, while notice under Penal Code section 3043 is necessary if it was requested, the victim's family has no right to be heard regarding any information that was available at the Petitioner's 2007 parole hearing." It declined to further modify its order with regard to its directions to the Board to grant Johnson a parole date unless new evidence or information was presented at the parole eligibility rehearing. Respondent timely filed the present appeal.¹

DISCUSSION

I. Consideration of Victim Family Member Statements

Appellant contends that as a matter of law, the Board must consider the entire and uninterrupted statements of the victim's next of kin at any parole hearing as required by Article I, section 28, subdivisions (b)(8) and (b)(15) of the California Constitution and Penal Code section 3043, which, after the enactment of Proposition 9 on November 4, 2008, grant crime victims rights to advance notice and participation in "critical" stages in a criminal proceeding. (See Cal. Const., art. I, § 28, amended by initiative, Gen. Elec. (Nov. 4, 2008), commonly known as Prop. 9; Historical and Statutory Notes, 51B West's Ann. Pen. Code (2009 supp.) foll. § 3043, p. 176.) She maintains the superior court's order as to the relevance of family member statements violates these constitutional and statutory rights.

A. Request to Dismiss Appeal/Request for Judicial Notice

Preliminarily, we address Johnson's argument that the present appeal should be dismissed as moot because Johnson has already received the hearing ordered by the superior court. She asks us to take judicial notice of the Board's February 2009 petition for writ of supersedeas in which the Board represented the hearing would occur on April 23, 2009, and the letters submitted by the victim's family, which she asserts were read into the record in full by the panel. She also requests leave to file the transcript of the April 2009 parole hearing.

In response, appellant requests that we take judicial notice of the April 2009 parole hearing transcript under California Rules of Court, rule 8.252 and Evidence Code sections 452, subdivision (c) and 459. She maintains the transcript shows that the appeal is not moot; according to appellant, the Board "found Johnson suitable [for parole] based on the limits placed on the Board in the superior court's order, which is the subject of this appeal." Appellant asserts that because this court can invalidate the Board's decision if she prevails on appeal, the appeal is not moot.

Subdivision (c) of Evidence Code section 452 permits the court to judicially notice "[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States." In accordance with section 452, subdivision (c), matters such as resolutions, reports and orders of administrative agencies or the state may be judicially noticed. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518; Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134; Childs v. State of California (1983) 144 Cal.App.3d 155, 162.)² We grant the Board's unopposed request that we judicially notice the transcript of the April 23, 2009 initial parole hearing, but solely for purposes of determining the matters on which the Board relied in reaching its decision. (See In re Roderick (2007) 154 Cal.App.4th 242, 261, fn. 15 [granting judicial notice of transcript of later parole hearing without analysis].)

Here, contrary to appellant's assertion that the Board's decision was based on the superior court's evidentiary limitations, the transcript of the April 2009 hearing indicates otherwise. Though the presiding commissioner initially stated he would not consider victim family member statements, when actually presented with those statements he disagreed with the Superior Court's ruling. He read the superior court's order limiting the Board's consideration of family member statements into the record and stated, "I clearly believe that is very wrong with respect to Marsy's Law . . . ." Treating the court's order as an advisory guideline, the commissioner proceeded to read into the record letters received from the victim's ex-wife and son over Johnson's counsel's objection.

The Board's decision to consider the victim family member statements regardless of the superior court's order arguably renders the first appellate contention moot. A question may be deemed moot when, although it initially presented an existing controversy, the passage of time or the acts of the parties or a court decision has deprived the controversy of its life. (Boccato v. City of Hermosa Beach (1984) 158 Cal.App.3d 804, 808.) This case meets the mootness criteria because the Board did in fact hear the family member statements without limitation; as to that point there is no remaining controversy that presents "`further immediate concern to the initiating parties.'" (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 868-869, fn. 8.)

Though the issue is technically moot, we nevertheless exercise our discretion to address it. "`There is ample precedent for appellate resolution of important issues of substantial and continuing public interest which otherwise may have been rendered moot and of no further immediate concern to the initiating parties.'" (Abbott Ford, Inc. v. Superior Court, supra, 43 Cal.3d at p. 869, fn. 8.) Appellant's claim raises an important issue that is capable of repetition but may evade appellate review in view of the Governor's review authority over the Board's decision. (See In re Lawrence (2008) 44 Cal.4th 1181, 1203 & fn. 9 [summarizing Governor's review powers]; e.g. In re R.V. (2009) 171 Cal.App.4th 239, 245-246.) We turn to the merits.

B. The Superior Court Lacked Authority to Limit the Board's Consideration of Family Member Statements to Information Pertaining to Johnson's Conduct after April 2007

Appellant's challenge to the superior court's remedy raises purely legal questions, and thus our review is de...