In re Lira

11 Cal. Daily Op. Serv. 14,748

135 Cal.Rptr.3d 137

2011 Daily Journal D.A.R. 17,446

In re Johnny LIRA, on Habeas Corpus.

No. H036162.

Court of Appeal, Sixth District, California.

Dec. 6, 2011.As Modified Dec. 21, 2011.

Background: Parolee filed petition for habeas corpus, seeking credit against his parole term for time spent in prison after date when Board of Parole Hearings erroneously found him unsuitable for parole and after date on which the Board found him suitable but the Governor vetoed that decision. The Superior Court, Santa Clara County, No. 7683, Rise Jones Pichon, J., granted habeas relief, and Department of Corrections and Rehabilitation appealed.

Holdings: The Court of Appeal, Rushing, J., held that:

(1) release did not render habeas petition moot;

(2) court had authority to direct Board to grant credit;

(3) incarceration for period between Board's erroneous unsuitability finding and final suitability finding was “lawful”;

(4) evidence did not support Governor's parole determination that parolee had committed second-degree murder in an especially aggravated manner;

(5) Governor could not rely on parolee's statements to the Board as evidence that he lacked insight into his history of substance abuse and the role it had played in murder;

(6) letter from murder victim's niece did not constitute reliable and credible evidence of dangerousness; and

(7) parolee was entitled to credit stemming from date 150 days after Board found him suitable for parole.

Affirmed as modified. Steve M. Defilippis, San Jose, under appointment by the Court of Appeal for Appellant, for Petitioner Johnny Lira.

Edmund G. Brown, Jr., Kamala D. Harris, Attorney 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 The People.

RUSHING, P.J.

I. Introduction

After 11 parole hearings and 29 years in prison under an indeterminate life sentence, defendant Johnny Lira was released on parole with a three-year term. In a habeas petition, Lira sought credit against his parole term for time spent in prison after 2005, when the Board of Parole Hearings (the Board) erroneously found him unsuitable for parole and after 2008, when the Board found him suitable but the Governor vetoed that decision. The superior court granted habeas relief and ordered the Board to grant the credit Lira sought. The issue before us is the propriety of that order.

Under Penal Code section 2900, an inmate is entitled to have all time served in prison credited against his or her “term of imprisonment.” Penal Code section 2900.5, subdivision (c) defines “ ‘term of imprisonment’ ” to include “any period of imprisonment and parole,” and in In re Bush (2008) 161 Cal.App.4th 133, 74 Cal.Rptr.3d 256 ( Bush ), the court construed this phrase to mean any period of imprisonment lawfully served.

Applying these provisions as construed, we hold that Lira was not entitled to credit for the period of continued incarceration caused by the Board's erroneous denial of parole, but he was entitled to credit for the period of continued incarceration caused by the Governor's veto of the Board's later decision to grant 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 three-year 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 credit ordered by the superior court. Accordingly, we modify the order to reduce the amount of credit and affirm the order as modified.

III. Procedural History

Lira was sentenced to prison for 15 years to life with a two-year firearm enhancement after he was convicted of second-degree murder for shooting his wife Allison. He entered prison in July 1981. His minimum eligible parole date was April 7, 1992.

In December 2005, the Board held Lira's ninth parole hearing and for the ninth time found him to be unsuitable for parole. He filed a petition for a writ of habeas corpus challenging that decision on the ground that it was not supported by some 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 ) [denial of parole without evidentiary support violates state constitutional right to procedural due process].) The superior court agreed, granted the writ, and ordered a new parole hearing. This court upheld that decision. ( Lira on Habeas Corpus (July 30, 2008, H031227) [nonpub. opn.].)

In November 2008, the Board conducted a new hearing, found Lira suitable for parole, and set his term of imprisonment at 216 months (18 years). In April 2009, then Governor Schwarzenegger vetoed the Board's decision, finding that Lira would pose a danger if released. In November 2009, the Board held the next regularly scheduled parole hearing, again found Lira suitable for parole, and set his term of imprisonment at 228 months (19 years). In December 2009, before the Board's decision became final and effective, Lira filed a writ petition challenging the Governor's 2009 veto. He alleged that it was not supported by some evidence and thus violated his right to procedural due process. In April 2010, while Lira's petition was still pending, Governor Brown declined to review the Board's latest decision to grant parole. Thereafter, the Board ordered Lira released on parole for three years effective April 8, 2010.

On April 22, 2010, Lira filed a supplemental petition seeking immediate discharge from parole. He claimed that his continued incarceration after December 2005 due to the Board's erroneous denial of parole and the Governor's allegedly erroneous veto of the Board's subsequent decision to grant parole was unlawful, and therefore, he was entitled to almost four years of credit. ² The superior court granted the supplemental petition and ordered the Board to grant Lira credit against his parole term for the period of incarceration after May 11, 2006.

IV. Mootness and Propriety of the Remedy

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

A. Mootness

[1][2] “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.)

[3] In his initial habeas petition, Lira challenged the Governor's veto and sought to have the Board's 2008 decision to grant parole reinstated. We agree with the CDCR that Lira's subsequent release on parole rendered that remedy moot and 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 was 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, then he is entitled to get it.

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

B. Propriety of the Remedy

[4] 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 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...