In re Lira

143 Cal.Rptr.3d 491

In re Johnny LIRA, on Habeas Corpus.

No. H036162.

Court of Appeal, Sixth District, California.

June 29, 2012.

Review Granted Oct. 17, 2012.

See 167 Cal.Rptr.3d 409, 317 P.3d 619.

Steve M. Defilippis, under appointment by the Court of Appeal, for Appellant.

Edmund G. Brown, Jr., Kamala D. Harris, Attorneys General, Julie Garland, Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Phillip Lindsay, Supervising Deputy Attorney General, Brian C. Kinney, Deputy Attorney General, for Respondent.

RUSHING, P.J.

I. INTRODUCTION

In this case we conclude that when a prison inmate remains incarcerated after the Governor has erroneously vetoed a decision to grant parole by the Board of Parole Hearings (Board), the period of continued incarceration is not lawfully served, and the inmate is entitled to custody credit against his term of imprisonment, which includes the prison term and term of parole. We further conclude that if the inmate has been released on parole prior to a determination that the Governor's veto was erroneous, the inmate, now parolee, is entitled to have that custody credit applied to reduce the term of parole.

II. STATEMENT OF CASE

Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (CDCR), appeals from an order of the superior court directing the Board to grant Lira nearly four years of credit against his parole term.¹ The CDCR claims the court lacked authority to order credit; and even if it had the authority, Lira was not entitled to any credit.

We conclude that Lira is entitled to some but not all of the custody credit ordered by the superior court. Accordingly, we modify the order to reduce the amount of custody credit and affirm the order as modified.

III. PROCEDURAL HISTORY

In 1981, after being convicted of second-degree murder for shooting his wife, Lira was sentenced to an indeterminate term in prison of 15 years to life with a two-year firearm enhancement. His minimum eligible parole date was April 7, 1992.

In December 2005, the Board denied Lira parole for the ninth time. He challenged the denial in a petition for a writ of habeas corpus claiming that the decision was not supported by any evidence and therefore violated his right to procedural due process. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 658, 664, 128 Cal.Rptr.2d 104, 59 P.3d 174 (Rosenkrantz ). ) The superior court agreed, granted the writ, and ordered a new parole hearing. On appeal, this court upheld the order. (Lira on Habeas Corpus (July 30, 2008, H031227) [nonpub. opn.].)

In November 2008, after a new hearing, the Board found Lira suitable for parole. However, in April 2009, former Governor Schwarzenegger vetoed that decision. In November 2009, the Board held Lira's next regularly scheduled parole hearing and again found him suitable for parole. In December 2009, before that decision became final and effective, Lira filed a writ petition challenging the Governor's 2009 veto on the ground that it was not supported by any evidence and seeking to have the Board's 2008 decision reinstated. In April 2010, while the petition was still pending, Governor Brown declined to review the Board's 2009 decision to grant parole, and Lira was released on parole effective April 8, 2010.

On April 22, 2010, Lira filed a supplemental habeas petition. He continued to claim that Governor Schwarzenegger's veto was erroneous, but having been released on parole, he sought different relief. Given the Board's erroneous denial of parole in 2005 and the Governor's allegedly erroneous veto in 2009, Lira sought an immediate discharge from parole. He claimed that because his continued incarceration after 2005 was unlawful, he was entitled custody credit that exceeded the length of his parole term. The superior court agreed that he was entitled to credit, granted the supplemental petition, and ordered the Board to give Lira "custody credits against his parole period from what should have been the effective date of a parole grant at his 2005 hearing...."²

IV. MOOTNESS AND PROPRIETY OF THE REMEDY

The CDCR contends that Lira's release in 2010 rendered the habeas proceeding moot, and therefore the superior court should have dismissed the supplemental petition. The CDCR also claims that regardless of whether Lira was lawfully incarcerated after December 2005, the superior court lacked authority to grant credit against a parole term as a remedy because doing so disregarded public safety and violated the doctrine of separation of powers, various penal statutes, and the terms of Lira's sentence.

A. Mootness

"The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." (Mills v. Green (1895) 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293; Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863, 167 P.2d 725.) "A question becomes moot when, pending an appeal ... events transpire that prevent the appellate court from granting any effectual relief. [Citations.]" (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 419, 67 Cal.Rptr.3d 317.)

In his initial habeas petition, Lira challenged the Governor's veto and sought to have the Board's 2008 decision to grant parole reinstated. Clearly, Lira's subsequent release on parole rendered that relief moot and ostensibly made it unnecessary to review the propriety of the Governor's veto. However, in his supplemental petition, Lira sought different relief—credit against his parole term—based on a claim that he had been unlawfully incarcerated from 2005 to 2010. That claim hinges, in part, on the propriety of the Governor's veto. Since Lira remains under the constructive custody of parole, his release did not render his claim for additional credit moot. On the contrary, if he is entitled to credit reducing his parole term, then he is entitled to get it.

Accordingly, we reject the CDCR's contention that the superior court should have simply dismissed Lira's supplemental petition.

B. Propriety of the Remedy

The CDCR claims that the only remedies available to a court when it determines that a gubernatorial veto violated due process are a remand back to the Governor or reinstatement of the Board's decision to grant parole. Thus the CDCR argues that even if the Governor's veto were erroneous, the superior court erred in directing the Board to grant Lira credit against his parole term. In support of this claim, the CDCR relies on In re Prather (2010) 50 Cal.4th 238, 112 Cal.Rptr.3d 291, 234 P.3d 541 (Prather ) and In re Miranda (2011) 191 Cal.App.4th 757, 120 Cal.Rptr.3d 461 (Miranda ).

In Prather, the Supreme Court resolved two cases— In re Prather and In re Molina —and addressed a very limited procedural question: what is the proper scope of a remand order when a court concludes that the Board's decision to deny parole is not supported by some evidence and therefore violates the inmate's right to due process. (Prather, supra, 50 Cal.4th at p. 243, 112 Cal.Rptr.3d 291, 234 P.3d 541.) Before Prather, reviewing courts had issued remand orders that restricted the Board's authority and discretion in determining suitability for parole. In Prather, the reviewing court ordered the Board to find Prather suitable for parole unless, after another hearing based on new and different evidence of Prather's subsequent conduct, the Board concluded that he was currently dangerous. (Id. at p. 246, 112 Cal.Rptr.3d 291, 234 P.3d 541.) In Molina , the remand order simply directed the Board to release Molina on parole. (Id. at p. 248, 112 Cal.Rptr.3d 291, 234 P.3d 541.) The Supreme Court explained that because parole decisions are within the exclusive powers of the executive branch, judicial orders restricting the Board's discretion impermissibly impair the exercise of the Board's executive power in determining suitability and thereby violate the constitutional principle of separation of powers. (Id. at pp. 254–256, 112 Cal.Rptr.3d 291, 234 P.3d 541.)³ The court found that the orders in both Prather and Molina suffered from this defect. (Prather, supra, 50 Cal.4th at pp. 244, 255–257, 112 Cal.Rptr.3d 291, 234 P.3d 541.) The court advised that a decision granting habeas relief for a due process violation by the Board "generally should direct the Board to conduct a new parole-suitability hearing in accordance with due process of law and consistent with the decision of the court, and should not place improper limitations on the type of evidence the Board is statutorily obligated to consider." (Id. at p. 244, 112 Cal.Rptr.3d 291, 234 P.3d 541.)

The facts of Miranda, supra, 191 Cal.App.4th 757, 120 Cal.Rptr.3d 461 are somewhat similar to those here. The Board granted Miranda parole in 2003, the Governor vetoed that decision, and Miranda sought habeas relief. Finding no evidence to support the veto, the superior court granted relief, and the Governor appealed. In 2004, before the appellate court decided the case, Miranda was released. In 2006, the appellate court reversed the superior court, finding that there was some evidence to support the Governor's 2003 veto. Nevertheless, Miranda remained out of prison until 2007, when the Board held another hearing. At that time, the Board denied parole, and in 2008, Miranda was returned to prison. In 2009, Miranda sought habeas relief in the appellate court, challenging the Board's 2007 denial and seeking release on parole. While the habeas petition was pending, the Board held another hearing and found Miranda suitable for parole. The Governor declined to review, and Miranda was released on parole. (Id. at pp. 761–762, 120 Cal.Rptr.3d 461.)

Meanwhile, in the pending habeas proceeding, Miranda pressed his challenge to the Board's 2007 denial of parole. He argued that if the...