Supreme Court of California Justia
Citation 50 Cal. 4th 238, 234 P.3d 541, 112 Cal. Rptr. 3d 291

In re Prather

Filed 7/29/10
IN THE SUPREME COURT OF CALIFORNIA

S172903
In re MICHAEL B. PRATHER
Ct.App. 2/5 B211805
on Habeas Corpus.
Los Angeles County
Super. Ct. No. BH005392

S173260
In re MIGUEL MOLINA
Ct.App. 2/6 B208705
on Habeas Corpus.
San Luis Obispo County
Super. Ct. No. CR13298

We granted review in these two cases to determine the proper scope of an order
directed to the Board of Parole Hearings (the Board) when a reviewing court concludes
that a decision to deny parole by the Board is not supported by ―some evidence‖ that a
prisoner remains a current threat to public safety. After the completion of briefing, we
consolidated these matters for purposes of oral argument and decision.
In In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008)
44 Cal.4th 1241 (Shaputis), we concluded that the standard governing judicial review of
parole decisions made either by the Board or by the Governor is whether ―some
evidence‖ supports the determination that a prisoner remains currently dangerous.
Lawrence and Shaputis each concerned the Governor‘s reversal of action taken by the
Board, and we did not address the question of the remedy appropriate in the event the
1


reviewing court determines the Board abused its discretion. Subsequent to our decisions
in these two cases, however, a conflict emerged among the appellate courts as to
precisely what action a reviewing court may direct the Board to take after that court has
granted the prisoner‘s petition for writ of habeas corpus. As set forth below, although
some courts have ordered the Board simply to hold a new suitability hearing ―in
accordance with due process,‖ other courts have directed the Board to find the prisoner
suitable for parole unless new evidence — that is, evidence that has emerged subsequent
to the parole-suitability hearing under review — supports a determination that the
prisoner remains currently dangerous.
We conclude that a decision granting habeas corpus relief in these circumstances
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. Accordingly, we conclude that the appellate courts in the two
cases now before us improperly restricted the Board‘s exercise of its discretion by
directing that only certain evidence be considered at the parole suitability hearing of
petitioner Michael B. Prather, and by ordering the release of petitioner Miguel Molina
without further proceedings. Both appellate decisions erroneously failed to recognize the
Board‘s statutory obligation to consider the full record in making a parole-suitability
determination.
I.
We consider the limited procedural question of the proper scope of the decision of
a reviewing court that concludes the Board has abused its discretion in denying a prisoner
a parole date. Because we granted review to consider this limited issue only, the
correctness of each of the appellate court decisions concluding that petitioners are
suitable for parole is not before us, and the circumstances of the commitment offenses —
and the import of those circumstances in deciding the question of suitability for parole —
2
are not germane to our inquiry. Accordingly, we discuss the respective commitment
offenses and postincarceration conduct of each petitioner in truncated form, and only as
relevant to the procedural question before us.
A. In re Prather
In 1982, Prather and two codefendants encountered the victims Elroy Ruiz and
Randolph William Carrier in a park where the victims had driven to purchase marijuana.1
Prather and his codefendants attempted unsuccessfully to take Ruiz‘s wallet. When Ruiz
began to drive away, his car stalled. After someone said, ―shoot him, shoot him,‖ Prather
shot Ruiz. Prather and his codefendants then began beating Carrier, who was seated in
the passenger seat. They pulled Carrier from the car and took his wallet. Carrier was
able to free himself and fled in the automobile. Ruiz died from his gunshot wounds.
Prather pleaded guilty to first degree murder (§ 187), robbery (§ 211), and attempted
robbery (§§ 664/211), and admitted an enhancement for personal use of a firearm
(§§ 12022.5, 1203.06, subd. (a)(1)). The Los Angeles County Superior Court sentenced
Prather to a term of imprisonment of 25 years to life, consecutive to a two-year
determinate term on the enhancement.
Prather reached his minimum eligible parole date on October 20, 2000. He was
found suitable for parole by a Board panel in 2005 and 2006, but both of these
determinations were reversed by the Governor. On November 28, 2007, the Board found
Prather unsuitable for parole and scheduled a new hearing to be conducted in one year.2
The 2007 parole hearing is the subject of our present review.

1
This factual recitation is taken from the Court of Appeal‘s opinion, with
modifications as appropriate. The statutory references that follow are to the Penal Code.
2
Prather waived, for a period of one year, that subsequent parole hearing, which
had been scheduled for January 29, 2009. After briefing was completed in this case,
Prather informed this court that on March 24, 2010, at a regularly scheduled parole
hearing, the Board considered all relevant information, concluded Prather was suitable

(footnote continued on following page)
3


Prather‘s prearrest record reflects that he struggled with substance abuse, was
involved with gangs, and had a substantial criminal record, including convictions for
carrying a concealed weapon, disorderly conduct while under the influence of drugs and
alcohol, burglary, and assault with a deadly weapon. He was on probation at the time of
the commitment offense. During his incarceration, Prather was cited for six serious
rules-violations, the most recent for possession of marijuana in 1994. He also has
received 13 custodial counseling citations for minor misconduct — the most recent in
2002 for refusal to be housed in the general population. Prather has participated
extensively in educational, self-help, and vocational programs.
At the 2007 parole hearing, Prather discussed the commitment offense and
asserted that although he willingly joined his codefendants in robbing the victims, he was
not the actual shooter. He admitted having assaulted Carrier and taking his wallet after
the shooting. He stated he pleaded guilty to first degree murder, and admitted being the
shooter, because he had received threats from his codefendants. Prather told the Board,
however, that even though he was not the shooter, he considered himself equally
responsible for Ruiz‘s death because he participated in the offense.
The 2007 Board panel found Prather unsuitable for parole. Noting it was not
bound by the findings of previous panels, the panel relied upon the egregious nature of
the commitment offense, emphasizing that multiple victims were attacked. The panel
also considered a mental health evaluation prepared for Prather‘s 2005 hearing, as well as
Prather‘s criminal history and disciplinary record. The panel expressed concern that the
2005 mental health evaluation was not completely supportive of release, despite

(footnote continued from preceding page)

for parole, and set a parole date. Our resolution of the issue involved in the present case
does not encompass review of the further proceedings related to the March 24, 2010
hearing.
4


rendering a ―moderately low risk‖ assessment for future violence, and noted its
preference for receiving a ―low risk‖ assessment before it would find Prather suitable for
parole. The panel requested a new mental health evaluation for the next parole hearing.
Finally, the panel noted that the local prosecutor‘s office and the local police department
opposed parole.
After unsuccessfully seeking habeas corpus relief in the superior court, Prather
filed a habeas corpus petition in the Court of Appeal. After issuing an order to show
cause, the appellate court in a split decision rendered an opinion granting Prather habeas
corpus relief. The two justices in the majority concluded there was no evidence in the
record to support the Board‘s finding of unsuitability, because the Board had found
Prather suitable for parole in 2006 and there was no new evidence in the record
suggesting that he is currently dangerous. The Court of Appeal, noting that the 2007
Board panel relied upon the 2005 mental health evaluation, which also had been
considered by the 2006 panel, concluded that the 2007 panel‘s view of this evaluation ―in
a different fashion‖ did not provide ―some evidence‖ of current dangerousness.
Notably, the Court of Appeal did not simply direct the Board to conduct a new
hearing, but instead directed the Board ―to find Mr. Prather suitable for parole unless,
within 30 days of the finality of this decision, the Board holds a hearing and determines
that new and different evidence of Mr. Prather‘s conduct in prison subsequent to his 2007
parole hearing supports a determination that he currently poses an unreasonable risk of
danger to society if released on parole.‖3
3
Justice Kriegler dissented, concluding that ―some evidence‖ supported the panel‘s
finding of current dangerousness, namely, the ―moderately low risk‖ assessment in the
2005 mental health evaluation, the egregious nature of the commitment offense, Prather‘s
criminal record, and his institutional misconduct.
5
B. In re Molina
In 1984, petitioner Molina shot and killed the victim Ruben Morales.4 The murder
occurred on a farm in Arroyo Grande, where both men worked. The record reflects that
the two men had had numerous altercations prior to the murder — including an incident
in which the victim threatened Molina with a knife — and that Molina had purchased a
rifle one week before the commitment offense. An eyewitness reported that Molina shot
Morales as Morales watched television in a room at a bunkhouse. The pathologist later
determined Morales had been shot between 15 and 18 times. The final two shots were
fired at closer range — from a distance of less than two feet — than the previous shots.
Molina fled after the shooting and was residing in Fresno when he was arrested four
months later. Molina pleaded no contest to second degree murder. (§ 187.) The trial
court sentenced Molina to 15 years to life on December 18, 1985.
Molina became eligible for parole on July 31, 1994. He was found suitable for
parole by a Board panel in 2002, but the decision was reversed by the Governor. On
December 20, 2006, the Board found Molina unsuitable for parole and issued a one-year
denial. The 2006 parole hearing is at issue here.5
The record reflects that Molina was born in Mexico, had minimal formal
schooling, and entered the United States illegally when he was 16 years of age. He was
23 years old at the time of the commitment offense. Molina abused alcohol and was
intoxicated on the night of the commitment offense. He has no juvenile criminal record
and no adult criminal record other than the commitment offense. During his

4
This factual recitation is taken from the Court of Appeal‘s opinion, with
modifications as appropriate.
5
At his subsequent parole hearing on September 23, 2008, Molina again received a
one-year denial. At his next parole hearing, held on October 14, 2009, the Board found
Molina suitable for parole. Our resolution of the present case does not encompass review
of the further proceedings related to the October 14, 2009 hearing.
6


incarceration, Molina has not received any serious rules-violation citations but has
received five custodial counseling citations for minor misconduct, the most recent being
in 1990. Molina has participated extensively in educational, self-help, and vocational
programs.
At the 2006 parole hearing, Molina characterized the commitment offense as self-
defense, stating that the victim and two other men had confronted him with a knife and
had challenged him to fight. Molina explained that he was very fearful of Morales and
ran into his room, grabbed his rifle, and then returned to the main room and shot Morales.
Molina stated he had purchased the rifle for hunting, and not with the intent to kill or
injure Morales.
The 2006 Board panel considered the brief 2005 mental health evaluation, which
was an addendum to a 2004 evaluation. The 2005 evaluation, noting that the information
in the 2004 evaluation was accurate, concluded Molina did not present a risk to society.
The 2004 evaluation, which was more comprehensive, concluded that Molina
demonstrated insight and empathy regarding the offense and that his potential for
violence was no greater than that of the average person.
The 2006 panel found Molina unsuitable for parole, noting the egregious nature of
the commitment offense and expressing concern about the discrepancy between Molina‘s
characterization of the commitment offense as an act of self-defense, and the official
record — which reflected that Molina attacked Morales without provocation. The panel
requested an investigation into the circumstances of the crime — particularly whether
Molina resided in the bunkhouse at the time of the shooting — and a new mental health
evaluation to help clarify the factual discrepancies in the record.
Petitioner sought habeas corpus relief in the superior court. On May 30, 2008,
after issuing an order to show cause and considering the return and the traverse that were
filed, the court granted habeas corpus relief, concluding there was no evidence in the
record to support the finding that Molina presented a current danger to society.
7
Consequently, the court directed the Board to find Molina suitable for parole and to order
his release.
In a split decision, the Court of Appeal affirmed the superior court‘s grant of
habeas corpus relief. Determining that the 2006 panel‘s focus upon who actually resided
at the bunkhouse was tangential to the ultimate issue of whether Molina presents a
current danger to society, the majority concluded there was no evidence in the record to
support a finding that Molina presents such a danger, in light of his consistently positive
mental health evaluations and his extensive rehabilitation. Consequently, after noting
that the Board initially set a parole date in 2002, and that ―[a]ny further delay is
unwarranted,‖ the appellate court remanded the matter to the trial court with directions to
―in turn remand to the Board with instructions to release Molina on parole in accordance
with conditions set by the Board.‖
Justice Yegan dissented, concluding that ―some evidence‖ supported the panel‘s
finding of current dangerousness, because Molina‘s version of the events (that Morales
and two friends arrived at the bunkhouse, a fight ensued between Morales and Molina,
and Molina fatally shot Morales) conflicts with the official version of the events (that
Molina entered the room where Morales was watching television and, unprovoked, shot
him 15 to 18 times). The dissenting justice concluded that this discrepancy suggests
Molina may lack insight into his commission of the offense. The dissent, disagreeing
with the majority‘s remand order directing Molina‘s release on parole, also concluded the
appropriate remedy would be to order the Board to hold a new hearing in accordance
with this court‘s decisions in Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44
Cal.4th 1241.
II.
As we explained in our recent decision in Lawrence, supra, 44 Cal.4th 1181, the
parole-suitability statutes ―provide that the Board is the administrative agency within the
executive branch that generally is authorized to grant parole and set release dates.
8
(§§ 3040, 5075 et seq.) The Board‘s parole decisions are governed by section 3041 and
Title 15, section [2402] of the California Code of Regulations [citation]. Pursuant to
statute, the Board ‗shall normally set a parole release date‘ one year prior to the inmate‘s
minimum eligible parole release date, and shall set the date ‗in a manner that will provide
uniform terms for offenses of similar gravity and magnitude in respect to their threat to
the public . . . .‘ (§ 3041 subd. (a), italics added.) Subdivision (b) of section 3041
provides that a release date must be set ‗unless [the Board] determines that the gravity of
the current convicted offense or offenses, or the timing and gravity of current or past
convicted offense or offenses, is such that consideration of the public safety requires a
more lengthy period of incarceration for this individual, and that a parole date, therefore,
cannot be fixed at this meeting.‘ ‖ (Lawrence, supra, 44 Cal.4th at pp. 1201-1202, fn. &
some italics omitted.)
Title 15, section 2402 of the California Code of Regulations (Regulations) sets
forth the factors to be considered by the Board in implementing the statutory mandate.6
This regulation is designed to guide the Board‘s assessment of whether the inmate poses
―an unreasonable risk of danger to society if released from prison,‖ and thus whether he
or she is suitable for parole. (Regs., tit. 15, § 2402, subd. (a).)7 The regulation lists
6
All further references to regulations are to title 15 of the California Code of
Regulations.
7
These factors include ―the circumstances of the prisoner‘s social history; past and
present mental state; past criminal history, including involvement in other criminal
misconduct which is reliably documented; the base and other commitment offenses,
including behavior before, during and after the crime; past and present attitude toward the
crime; any conditions of treatment or control, including the use of special conditions
under which the prisoner may safely be released to the community; and any other
information which bears on the prisoner‘s suitability for release. Circumstances which
taken alone may not firmly establish unsuitability for parole may contribute to a pattern
which results in a finding of unsuitability.‖ (Regs., tit. 15, § 2402, subd. (b).)
9
several circumstances relating to unsuitability for parole (such as the heinous, atrocious,
or cruel nature of the crime, or an unstable social background)8 and several
circumstances relating to suitability for parole (such as an inmate‘s rehabilitative efforts
and demonstration of remorse, and the mitigating circumstances of the crime).9 (Regs.,
tit. 15, § 2402, subds. (c), (d).) Finally, the regulation explains that the foregoing
circumstances ―are set forth as general guidelines; the importance attached to any
circumstance or combination of circumstances in a particular case is left to the judgment
of the panel.‖ (Regs., tit. 15, § 2402, subds. (c), (d).) The Governor‘s power to review a
8
Unsuitability factors are: (1) a commitment offense carried out in an ―especially
heinous, atrocious or cruel manner‖; (2) a ―[p]revious [r]ecord of [v]iolence‖; (3) ―a
history of unstable or tumultuous relationships with others‖; (4) ―[s]adistic [s]exual
[o]ffenses‖; (5) ―a lengthy history of severe mental problems related to the offense‖; and
(6) ―serious misconduct in prison or jail.‖ (Regs., tit. 15, § 2402, subd. (c)(1)-(6).) This
subdivision further provides that ―the importance attached to any circumstance or
combination of circumstances in a particular case is left to the judgment of the panel.‖
(Regs., tit. 15, § 2402, subd. (c).)

Factors supporting a finding that the inmate committed the offense in an especially
heinous, atrocious, or cruel manner include the following: (A) multiple victims were
attacked, injured, or killed in the same or separate incidents; (B) the offense was carried
out in a dispassionate and calculated manner, such as an execution-style murder; (C) the
victim was abused, defiled, or mutilated during or after the offense; (D) the offense was
carried out in a manner that demonstrates an exceptionally callous disregard for human
suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the
offense. (Regs., tit. 15, § 2402, subd. (c)(1).)
9
Suitability factors are: (1) the absence of a juvenile record; (2) ―reasonably stable
relationships with others‖; (3) signs of remorse; (4) a crime committed ―as the result of
significant stress in [the prisoner‘s] life‖; (5) battered-woman syndrome; (6) the lack of
―any significant history of violent crime‖; (7) ―[t]he prisoner‘s present age reduces the
probability of recidivism‖; (8) ―[t]he prisoner has made realistic plans for release or has
developed marketable skills that can be put to use upon release‖; and (9) the inmate‘s
―[i]nstitutional activities indicate an enhanced ability to function within the law upon
release.‖ (Regs., tit. 15, § 2402, subd. (d)(1)-(9).)
10


decision of the Board is set forth in article V, section 8, subdivision (b) of the California
Constitution.10
―[T]he governing statute provides that the Board must grant parole unless it
determines that public safety requires a lengthier period of incarceration for the
10
Article V, section 8, subdivision (b) of the California Constitution provides in full:
―No decision of the parole authority of this State with respect to the granting, denial,
revocation, or suspension of parole of a person sentenced to an indeterminate term upon
conviction of murder shall become effective for a period of 30 days, during which the
Governor may review the decision subject to procedures provided by statute. The
Governor may only affirm, modify, or reverse the decision of the parole authority on the
basis of the same factors which the parole authority is required to consider. The
Governor shall report to the Legislature each parole decision affirmed, modified, or
reversed, stating the pertinent facts and reasons for the action.‖

The statutory procedures governing the Governor‘s review of a parole decision are
set forth in section 3041.2, which states: ―(a) During the 30 days following the granting,
denial, revocation, or suspension by a parole authority of the parole of a person sentenced
to an indeterminate prison term based upon a conviction of murder, the Governor, when
reviewing the authority‘s decision pursuant to subdivision (b) of Section 8 of Article V of
the Constitution, shall review materials provided by the parole authority. [¶] (b) If the
Governor decides to reverse or modify a parole decision of a parole authority pursuant to
subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a
written statement to the inmate specifying the reasons for his or her decision.‖

As we explained in In re Rosenkrantz (2002) 29 Cal.4th 616, 658-659
(Rosenkrantz), ―[b]efore the addition of article V, section 8(b), to the California
Constitution in November 1988 by initiative (Proposition 89), the power to grant or deny
parole was statutory and committed exclusively to the judgment and discretion of the
Board. (In re Fain (1983) 145 Cal.App.3d 540, 548-550.) The Governor had no direct
role in decisions whether to grant or deny parole to an incarcerated individual. (Ibid.; cf.
Pen. Code, §§ 3041.1 [authorizing the Governor to request that the full Board sitting in
bank review a parole decision], 3062 [authorizing the Governor to revoke parole].) The
constitutional authority of the Governor in this area was limited to the fundamentally
distinct power to grant a reprieve, pardon, or commutation. (In re Fain, supra, 145
Cal.App.3d at p. 548; see Cal. Const., art. V., § 8, subd. (a).) By adding article V, section
8(b), to the California Constitution, the voters conferred upon the Governor constitutional
authority to review the Board‘s decisions concerning the parole of individuals who have
been convicted of murder and are serving indeterminate sentences for that offense.‖
11


individual because of the gravity of the offense underlying the conviction. (Pen. Code,
§ 3041, subd. (b).) And as set forth in the governing regulations, the Board must set a
parole date for a prisoner unless it finds, in the exercise of its judgment after considering
the circumstances enumerated in section 2402 of the regulations, that the prisoner is
unsuitable for parole. Accordingly, parole applicants in this state have an expectation
that they will be granted parole unless the Board finds, in the exercise of its discretion,
that they are unsuitable for parole in light of the circumstances specified by statute and by
regulation.‖ (In re Rosenkrantz, supra, 29 Cal.4th 616, 654 (Rosenkrantz).)
In sum, the statutes and governing regulations establish that the decision to grant
or deny parole is committed entirely to the judgment and discretion of the Board, with a
constitutionally based veto power over the Board‘s decision vested in the Governor.
Nevertheless, we held in Rosenkrantz, supra, 29 Cal.4th 616, that courts are authorized to
review the merits of the Board‘s or the Governor‘s decision to grant or deny parole. We
explained that both the Board and the Governor must consider the statutory factors
concerning parole suitability set forth in section 3041 as well as the Board regulations
(Regs., tit. 15, § 2230 et seq.), and that ―because due process of law requires that a
decision considering such factors be supported by some evidence in the record, the
Governor‘s [and the Board‘s] decision is subject to judicial review to ensure compliance
with this constitutional mandate.‖ (Rosenkrantz, supra, 29 Cal.4th at p. 664.) Thus, a
petitioner is entitled to a constitutionally adequate and meaningful review of a parole
decision, because an inmate‘s due process right ―cannot exist in any practical sense
without a remedy against its abrogation.‖ (Ibid.; see also Lawrence, supra, 44 Cal.4th at
p. 1213.)
In Lawrence, supra, 44 Cal.4th 1181, and Shaputis, supra, 44 Cal.4th 1241, we
reaffirmed the availability of judicial review of decisions rendered by the Board or the
Governor denying parole or reversing a grant of parole, and resolved a conflict among the
appellate courts regarding the proper scope of the deferential ―some evidence‖ standard
12
of review we set forth in Rosenkrantz, supra, 29 Cal.4th 616, and thereafter applied in In
re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg). We clarified that in evaluating a
parole-suitability determination by either the Board or the Governor, a reviewing court
focuses upon ―some evidence‖ supporting the core statutory determination that a prisoner
remains a current threat to public safety — not merely ―some evidence‖ supporting the
Board‘s or the Governor‘s characterization of facts contained in the record. Specifically,
we explained that, because the paramount consideration for both the Board and the
Governor under the governing statutes is whether the inmate currently poses a threat to
public safety, and because the inmate‘s due process interest in parole mandates a
meaningful review of a decision denying parole, the proper articulation of the standard of
review is whether there exists ―some evidence‖ demonstrating that an inmate poses a
current threat to public safety, rather than merely some evidence suggesting the existence
of a statutory factor of unsuitability. (Lawrence, supra, 44 Cal.4th at p. 1191.)
Our decisions in Lawrence and Shaputis addressed the Governor‘s reversal of a
grant of parole by the Board, and did not determine the proper remedy when a reviewing
court grants a petition for writ of habeas corpus on the basis that the Board‘s decision to
deny parole was not supported by some evidence of current dangerousness. We
previously have stated, however, that when a court determines that the Board has abused
its discretion in denying parole, ―the court should grant the prisoner‘s petition for writ of
habeas corpus and should order the Board to vacate its decision denying parole and
thereafter to proceed in accordance with due process of law.‖ (Rosenkrantz, supra, 29
Cal.4th at p. 658.)
The phrase ―in accordance with due process of law‖ is somewhat ambiguous and
susceptible of various interpretations. Indeed, subsequent to our decisions in Lawrence
and Shaputis, the appellate courts in making determinations that the Board abused its
discretion in denying parole have fashioned a wide array of divergent remedies,
engendering a conflict in the law with regard to the proper procedure for evaluating and
13
resolving parole cases. (See, e.g., In re Criscione (2009) 173 Cal.App.4th 60, 78 [the
Board was ordered to hold a new hearing in which it may consider all relevant factors]; In
re Lazor (2009) 172 Cal.App.4th 1185, 1204 [same]; In re Barker (2007) 151
Cal.App.4th 346, 378 [same]; but see In re Masoner (2009) 172 Cal.App.4th 1098 [the
Board was directed to find the inmate suitable unless new evidence of conduct or
changed mental state demonstrated current dangerousness]; In re Palermo (2009) 171
Cal.App.4th 1096 [same]; In re Rico (2009) 171 Cal.App.4th 659 [the Board was directed
to find the inmate suitable unless new and/or previously undiscovered evidence of the
inmate‘s circumstances, conduct, and change in mental state demonstrated current
dangerousness]; In re Gaul (2008) 170 Cal.App.4th 20 (Gaul) [the Board was directed to
find the inmate suitable unless new evidence of conduct demonstrated current
dangerousness].)
As noted above, the Court of Appeal‘s decision in the Prather matter is similar to
the decision in Gaul, supra, 170 Cal.App.4th 20, in directing the Board to find Prather
suitable for parole unless new evidence of ―conduct in prison‖ occurring subsequent to
the 2007 parole hearing demonstrates current dangerousness. The Court of Appeal‘s
decision in the Molina matter represents the most restrictive of the remedies fashioned by
the various Courts of Appeal — directing that the prisoner be released immediately
without further proceedings before the Board, and without review by the Governor.
III.
The Attorney General contends that the appellate decisions rendered in both the
Prather and Molina matters violate the constitutional doctrine of separation of powers
(Cal. Const., art. III, § 3) by infringing upon the authority of the executive branch to
make parole-suitability determinations. We hold that by purporting to limit the Board‘s
consideration of all relevant statutory factors, the decisions in both cases do infringe upon
this authority, and therefore are improper. We come to this conclusion because an order
precluding the Board from considering all relevant and reliable evidence when making a
14
parole-suitability determination improperly circumscribes the statutory mandate that the
Board consider all relevant statutory factors when making its decision, and is
incompatible with our directive in Lawrence that evidence of suitability and unsuitability
must be considered in light of the full record before the Board. (Lawrence, supra, 44
Cal.4th at p. 1214; Regs., tit. 15, § 2402, subd. (b).)
Although, as noted above, we have not previously considered this precise issue,
we observed in Rosenkrantz, supra, 29 Cal.4th 616, that a proper order after a grant of
habeas corpus relief should direct the Board to ―proceed in accordance with due process
of law‖ (id. at p. 658), citing appellate decisions supporting this proposition. (In re
Ramirez (2001) 94 Cal.App.4th 549, 572, disapproved on another ground in Dannenberg,
supra, 34 Cal.4th 1061; In re Bowers (1974) 40 Cal.App.3d 359, 362.) These cases
confirm our conclusion here that it is improper for a reviewing court to direct the Board
to reach a particular result or to consider only a limited category of evidence in making a
suitability determination.
In Ramirez, the appellate court upheld the trial court‘s grant of habeas corpus
relief to the petitioner on the basis that the Board abused its discretion in finding him
unsuitable for parole, but also noted that ―the trial court erred by making its own
evaluations of the evidence before the Board, and by ordering the Board to set a parole
date. In deference to the Board‘s broad discretion over parole suitability decisions, courts
should refrain from reweighing the evidence, and should be reluctant to direct a particular
result.‖ (In re Ramirez, supra, 94 Cal.App.4th at p. 572.) ―The Board must be given
every opportunity to lawfully exercise its discretion over [petitioner‘s] parole
application.‖ (Ibid.)
In In re Bowers, supra, 40 Cal.App.3d 359, the trial court granted the petition for a
writ of habeas corpus on the basis that the petitioner had not been afforded a parole
prerevocation hearing by the Adult Authority, the statutory predecessor of the Board.
The sole issue before the appellate court was whether ―the trial court went too far in
15
ordering the Adult Authority to release petitioner from prison and restore him to parole
and in barring the Adult Authority from further consideration of the alleged incident
forming the basis for revocation of petitioner‘s parole.‖ (Id. at p. 362.) The appellate
court concluded that the trial court‘s order was improper. ―The power to grant and
revoke parole is vested in the Department of Corrections, not the courts. (Pen. Code,
§§ 3040, 3056, 5054, 5077; In re Schoengarth (1967) 66 Cal.2d 295, 300, 304.) The
proper function of the courts in respect to parole and revocation of parole is simply to
ensure that the prisoner is accorded due process. . . . Thus, where the Department of
Corrections has failed to accord a prisoner due process of law in revoking his parole, the
relief to which the prisoner is entitled on habeas corpus is not an order forever barring the
Department of Corrections from proceeding further, but, rather, an order directing the
Department of Corrections to vacate its order of revocation and thereafter to proceed in
accordance with due process of law.‖ (In re Bowers, supra, 40 Cal.App.3d at p. 362.)
The foundation for the decisions in In re Ramirez and In re Bowers is the doctrine
of separation of powers. As explained recently by the court in In re Lugo (2008) 164
Cal.App.4th 1522, in relying upon this doctrine to set aside a trial court‘s order
remedying the Board‘s erroneous issuance of a multiyear denial under section 3041.5,
subdivision (b)(2): ―The separation of powers principle is embodied in the California
Constitution, which provides as follows in article III, section 3: ‗The powers of state
government are legislative, executive, and judicial. Persons charged with the exercise of
one power may not exercise either of the others except as permitted by this Constitution.‘
‗The separation of powers doctrine limits the authority of one of the three branches of
government to arrogate to itself the core functions of another branch. [Citations.]
[Citation.]‘ (Rosenkrantz, supra, 29 Cal.4th at p. 662.) Although the doctrine is not
intended to prohibit one branch from taking action that might affect those of another
branch, the doctrine is violated when the actions of one branch ‗defeat or materially
impair the inherent functions of another branch. [Citation.]‘ ( Ibid.) Intrusions by the
16
judiciary into the executive branch‘s realm of parole matters may violate the separation
of powers. (See Hornung v. Superior Court (2000) 81 Cal.App.4th 1095, 1099 [court
order allowing inmate to question commissioners regarding their parole-related decision
process violated separation of powers].)‖ (In re Lugo, supra, 164 Cal.App.4th at
p. 1538.)
The orders in the present matters — purporting, in the case of Prather, to confine
the Board‘s consideration of evidence solely to new evidence of Prather‘s ―conduct in
prison‖ since his last parole hearing and, in the case of Molina, to dispense entirely with
any further evaluation by the Board or the Governor — materially infringe upon the
Board‘s discretion to make parole decisions on the basis of all relevant information, and
thereby improperly circumscribe the Board‘s statutory directive. ―As we recognized in
Rosenkrantz, supra, 29 Cal.4th 616, when evaluating whether an inmate continues to
pose a threat to public safety, both the Board and the Governor must consider all relevant
statutory factors, including those that relate to postconviction conduct and rehabilitation.
(Id. at p. 655 [noting that the Board ‗ ―cannot, consistently with its obligation, ignore
postconviction factors unless directed to do so by the Legislature,‖ ‘ and that
‗ ―[a]lthough a prisoner is not entitled to have his term fixed at less than maximum or to
receive parole, he is entitled to have his application for these benefits ‗duly considered‘ ‖
based upon an individualized consideration of all relevant factors‘].)‖ (Lawrence, supra,
44 Cal.4th at p. 1219.)
Orders that are designed to limit the Board‘s consideration of evidence to only
recent and specified changes in the existing record before the Board necessarily limit that
body‘s consideration of all relevant factors, thereby improperly curtailing the Board‘s
exercise of the authority it possesses under the governing statutes. Moreover, such
restrictive orders also sanction the narrow type of evaluation by the Board that we
specifically disapproved in Lawrence, supra, 44 Cal.4th 1181, 1214, in which we
explained that ―[b]ecause the parole decision represents a prospective view — essentially
17
a prediction concerning the future — and reflects an uncertain conclusion, rarely (if ever)
will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to
support or refute that decision.‖ Thus, the Board may not base its assessment of current
dangerousness upon the existence or nonexistence of a suitability factor, but instead must
determine whether a particular fact is probative of the central issue of current
dangerousness when considered in light of the full record. (Id. at p. 1221.) An order
directing the Board to consider only the evidence that has materialized since the Board‘s
last evaluation and, in some cases, requiring that only specified new evidence be
considered, precludes the Board‘s consideration of the full record and thereby ensures
that the new evidence will be ―evaluated in a vacuum.‖
Turning to the appellate opinions rendered in the two cases under review, we
conclude that the decision in the Prather matter impermissibly impairs the Board‘s
exercise of its inherent discretion to decide parole matters. The Court of Appeal directed
the Board to find Prather suitable for parole unless new evidence of his conduct in prison
since the last hearing supported a determination that he posed a threat to public safety if
released. As the Attorney General points out, this limiting directive prevents the Board
from considering Prather‘s 2008 mental health evaluation and new evidence that Prather
waived his January 2009 parole hearing because he did not have documented parole
plans — both matters that cannot be fairly characterized as relating to Prather‘s ―conduct
in prison.‖ Yet, both of these circumstances are potentially probative concerning
Prather‘s parole suitability, and both are factors that the governing statutes and
regulations require the Board to consider.
Moreover, even if new evidence of Prather‘s conduct, mental state, or parole plans
does not, standing alone, support a determination that Prather currently is dangerous, it
certainly is conceivable that new evidence as to any of these factors might be probative
when considered in light of other, existing evidence in the record. For example, if the
record disclosed a recent disciplinary violation for reporting late to work, that
18
information might not, standing alone, constitute some evidence that Prather remains
dangerous, but it may possess substantially more probative value if the record
demonstrates that Prather‘s criminality was tied to an inability to retain employment
because of his chronic tardiness.
Indeed, it is possible that older evidence was not cited by the Board, and was not
contained in the record before the reviewing court, because the parties determined such
evidence was irrelevant. Yet, if new evidence emerges after the last suitability hearing,
this older evidence may take on new relevance and may provide support for a
determination that a prisoner is not suitable for parole. Under the restrictive order in the
Prather matter, the Board would be barred from considering such evidence, thereby
severely compromising the integrity of its decision.11 These hypothetical possibilities are
not exhaustive: they merely illustrate the myriad circumstances in which the evaluation of
newly available evidence requires a reevaluation of existing evidence. Without question,
consideration of the interrelationship and possible probative value of both new and
existing evidence in the record lies squarely within the discretionary authority vested in
the Board. A reviewing court may not — consistent with the principles embodied in the
separation-of-powers doctrine — impair the exercise of this discretion by placing
improper limits upon the Board‘s review of a prisoner‘s record.
The even more restrictive order in the Molina matter — which purports to bar any
further review by the Board and orders Molina‘s immediate release — is necessarily
11
Even if we assume for the sake of argument that the reviewing court‘s order
contemplates a consideration of any new evidence of petitioner‘s ―conduct in prison‖ in
the context of the full record, the court‘s directive still has a significant potential to create
confusion, particularly as to whether certain new evidence properly may be characterized
as relating to Prather‘s general conduct. In light of this potential confusion, a reviewing
court should refrain from issuing directives that purport to limit the type of evidence that
the Board may consider upon remand.
19
deficient for the same reasons. In view of our conclusion that a reviewing court may not
improperly limit the evidence upon which the Board may rely in making a suitability
determination, it follows that a court may not bar the Board from considering any
evidence at all. Moreover, by ordering Molina‘s release prior to review by the Governor,
the court‘s directive also improperly intrudes upon the Governor‘s independent
constitutional authority to review the Board‘s parole decision. (Cal. Const., art. V, § 8,
subd. (b); Pen. Code, § 3041.2; Masoner, supra, 172 Cal.App.4th at p. 1105.)12 Thus, the
appellate court‘s remand order violates the separation-of-powers doctrine. As in Prather,
the matter should have been remanded without improper limitation to permit the
executive branch to exercise its statutory and constitutional authority over parole
decisions.
Petitioners assert that the restrictions imposed by the appellate courts in the
matters presently before us are proper because the Board already has considered the
entirety of the record and the Board‘s conclusion based upon that review has been
determined by the Court of Appeal to be unsupported by ―some evidence‖ of current
dangerousness. Accordingly, petitioners contend that these restrictions are a proper
means of ensuring that any subsequent decision by the Board comports with due process.
Petitioners contend this is so because restrictions such as those at issue in the present
12
―Article V, section 8 of the California Constitution grants the Governor power to
review board decisions ‗with respect to the granting, denial, revocation, or suspension‘ of
parole. . . . The Governor‘s power to review a parole decision begins only when the
decision is effective, whether due to lapse of time, board approval, or court action, italics
omitted.‖ (In re Tokhmanian (2008) 168 Cal.App.4th 1270, 1276-1277.) The Governor
has the authority to weigh suitability factors differently from the Board: ―Although ‗the
Governor‘s decision must be based upon the same factors that restrict the Board in
rendering its parole decision‘ [citation], the Governor undertakes an independent, de
novo review of the inmate‘s suitability for parole. [Citation.] Accordingly, the Governor
has discretion to be ‗more stringent or cautious‘ in determining whether a defendant
poses an unreasonable risk to public safety.‖ (Shaputis, supra, 44 Cal.4th at p. 1258.)
20
cases properly will compel the Board to grant parole unless relevant information that has
emerged since the Board‘s denial of parole contravenes the reviewing court‘s conclusion
that the prisoner is suitable for parole.
Of course, a court may, in appropriate circumstances, expressly state in its remand
order that the Board may not base an unsuitability determination solely upon evidence
already considered and rejected by the reviewing court. Such language is unnecessary,
however, because the Board is required to adhere to the decision of the Court of Appeal
irrespective of any specific limiting directions in the court‘s order. In conducting a
suitability hearing after a court‘s grant of habeas corpus relief, the Board is bound by the
court‘s findings and conclusions regarding the evidence in the record and, in particular, by
the court‘s conclusion that no evidence in the record before the court supports the Board‘s
determination that the prisoner is unsuitable for parole. Thus, an order generally directing
the Board to proceed in accordance with due process of law does not entitle the Board to
―disregard a judicial determination regarding the sufficiency of the evidence [of current
dangerousness] and to simply repeat the same decision on the same record.‖ (Masoner,
supra, 172 Cal.App.4th at p. 1110.) Rather, a judicial order granting habeas corpus relief
implicitly precludes the Board from again denying parole — unless some additional
evidence (considered alone or in conjunction with other evidence in the record, and not
already considered and rejected by the reviewing court) supports a determination that the
prisoner remains currently dangerous.
In the majority of cases, such additional evidence will be new — that is, changes will
have occurred in the prisoner‘s mental state, disciplinary record, or parole plans subsequent
to the last parole hearing. As set forth above, however, it also is conceivable that new
evidence will be probative only when viewed together with other evidence that already is
part of the record (some of which may not have been contained in the record before the
reviewing court), or that a review of the full record will reveal additional grounds supporting
21
a decision to deny parole. A reviewing court should not compromise the Board‘s authority
by engaging in speculation concerning the type of evidence that might change the calculus of
the Board‘s parole decision. Instead, a proper judicial review and remand will ensure that
the Board retains its full discretion to determine whether a new evaluation by that body is
necessary and whether, in light of the court‘s findings, the inmate should be released.
Accordingly, although a reviewing court may expressly limit the Board‘s reliance upon
evidence the court already has considered and rejected as insufficient, the court should avoid
issuing directives that improperly limit the Board‘s statutory authority to review and evaluate
the full record — including evidence previously considered by the Board, as well as
additional evidence not presented at prior parole hearings.
IV.
The judgments rendered by the Court of Appeal are reversed, and these matters are
remanded to the respective divisions of that court with directions, in turn, to order the
Board of Parole Hearings to conduct new parole-suitability hearings for Prather and
Molina consistent with this opinion.
GEORGE, C. J.

WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
22



CONCURRING OPINION BY MORENO, J.

I concur in the majority opinion, but write separately to clarify certain language in
the opinion that may be cause for confusion. The basic principles set forth in the opinion,
when considered in the context of well-established principles of due process and
administrative law, lead to the conclusion that after a court has reversed the parole denial
decision of the Board of Parole Hearings (the Board), the Board may not deny parole
based solely on arguments and evidence that have been presented, or reasonably could
have been presented, at the prior parole hearing.
Although, as the majority explains, the Board retains some discretion on remand
after a judicial reversal of its parole denial decision, that discretion is limited. It is indeed
a well-established principle of administrative law that an administrative agency vested
with discretion to make a certain decision in the first instance may have its discretion
limited on remand or even eliminated entirely by a reviewing court. (See Tripp v. Swoap
(1976) 17 Cal.3d 671, 677 [no need to remand on the issue of awarding disability benefits
where ―there was no issue remaining on which the trial court could invade the director‘s
discretion‖] (overruled on other grounds in Frink v. Prod (1982) 31 Cal.3d 166, 180;
American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th
1017); Ross Gen. Hosp., Inc. v. Lackner (1978) 83 Cal.App.3d 346, 354 [―Where the
1



record of the administrative proceedings requires as a matter of law that a particular
determination be made, the court may order that the agency carry out its legal
obligation.‖].) Separation of powers principles dictate not only that administrative
agency discretion be preserved according to the agency‘s statutory authorization, but also
that courts must be able to play their assigned role of reviewing agency decisions and
fashioning appropriate remedies when an agency has abused its discretion. If a court
were unable to limit an agency‘s discretion on remand, if in effect the agency could on
remand ignore the court‘s decision, then that type of disregard would upset the careful
balance the separation of powers maintains no less than if a court were improperly to
invade an administrative agency‘s discretion.
It is also important to note that separation of powers principles are already
incorporated into the standard by which courts review the Board‘s parole decisions.
Whereas in most cases, a court reviewing an administrative agency decision either exercises
its own independent judgment or uses the more deferential substantial evidence review (see
Bixby v. Pierno (1971) 4 Cal.3d 130, 137), in the case of parole decisions, courts are to
employ an even more deferential ― ‗some evidence‘ ‖ test (In re Lawrence (2008) 44 Cal.4th
1181, 1191 (Lawrence)). This highly deferential standard reflects the considerable discretion
with which the Board is vested. But once a final judicial decision has been rendered
reversing the Board‘s decision under this deferential standard, separation of powers
principles are not offended by acknowledging that this judicial decision significantly limits
the Board‘s discretion to again deny parole.
The problem then, is not whether a court may limit the Board‘s discretion on
remand, but rather to define the nature and extent of that limitation. In Lawrence, supra,
44 Cal.4th 1181, we held that the Board and the Governor cannot deny parole to an
eligible life prisoner serving an indeterminate term unless they find that the prisoner
poses a current threat to public safety, and that courts will reverse a parole denial that is
not based on at least some evidence of such a current threat. (Id. at p. 1191.) In the
2

Prather matter the Court of Appeal below, applying Lawrence, held that the Board had
not produced some evidence of current dangerousness and reversed the Board‘s 2007
denial of parole. Under the basic principle of res judicata, that denial may not be
relitigated. It is black letter law that ―[r]es judicata bars the litigation not only of issues
that were actually litigated in the prior proceeding, but also issues that could have been
litigated in that proceeding.‖ (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82,
citing Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 975.) Thus, given a
final judicial determination that as of 2007, there was no evidence that a prisoner poses a
current threat to public safety, the Board on remand cannot base a finding of parole
unsuitability only on evidence that was or could have been presented at the 2007 hearing,
in effect relitigating that hearing.
Moreover, the present cases must be considered in light of the injunction in In re
Sturm (1974) 11 Cal.3d 258, 272 (Sturm), that due process requires the Board to provide
a ―definitive written statement of its reasons for denying parole.‖ This requirement
followed from the principle that a prisoner has the right to be ― ‗duly considered‘ ‖ for
parole and not to be denied parole arbitrarily, and that such rights ―cannot exist in any
practical sense unless there also exists a remedy against their abrogation.‖ (Id. at p. 268.)
A definitive written statement of reasons was necessary to guarantee that such an
effective remedy exists, because, inter alia, it will help to ensure ―an adequate basis for
judicial review.‖ (Id. at p. 272.) It is important that Sturm be taken at its words, and that
the Board be required to issue a definitive written statement of reasons. The Board
cannot, after having its parole denial decision reversed, continue to deny parole based on
matters that could have been but were not raised in the original hearing. Such piecemeal
litigation would undermine the prisoner‘s right to a fair hearing and the ability of courts
to judicially review and grant effective remedies for the wrongful denial of parole.
In short, the Board, like other litigants and other administrative agencies, is not
entitled to the proverbial second bite at the apple. At the parole hearing it must state
3

definitely its reasons for denying parole, i.e., all the arguments and evidence why the
prisoner is currently dangerous. If the denial is challenged, the Board must defend its
action based on those reasons. If the challenge is overturned, it may not again deny
parole based on the same reasons, or based on arguments and evidence that reasonably
could have been, but were not, raised at these prior proceedings.
Nothing in the majority opinion contravenes the above principles. The majority states
that, in most cases, additional evidence on which the Board can legitimately rely to deny
parole after remand by a court ―will be new — that is, changes will have occurred in the
prisoner‘s mental state, disciplinary record, or parole plans subsequent to the last parole
hearing. As set forth above, however, it also is conceivable that new evidence will be
probative only when viewed together with other evidence that already is part of the record
(some of which may not have been contained in the record before the reviewing court), or
that a review of the full record will reveal additional grounds supporting a decision to deny
parole.‖ (Maj. opn., ante, at pp. 21-22.) I fully agree that any new evidence, such as
―changes . . . in the prisoner‘s mental state, disciplinary record, or parole plans,‖ is not
required to be viewed in isolation, but in light of the record as a whole. Because there is
often a considerable time lag between the parole denial under review and the judicial
decision reversing that denial, the Board‘s mandate to protect the public must include an
ability to consider significant new developments in the prisoner‘s situation during this
interim period, and to determine whether those developments, considered in conjunction
with all the available evidence, shed new light on the prisoner‘s current dangerousness. It is
not completely clear what is meant by ―or that a review of the full record will reveal
additional grounds supporting a decision to deny parole.‖ But I do not understand this
conjunctive phrase to undermine in any way the principle established in Sturm that the Board
has a duty to provide the prospective parolee, as well as the court, with a definitive statement
of reasons for denying parole, nor to contravene the corollary principle that that the Board
4

may not deny parole solely based on evidence that it reasonably could have produced at the
previous parole hearing.
Two other points deserve mention. First, as the majority recounts, the Prather court‘s
order directed the Board ― ‗to find Mr. Prather suitable for parole unless, within 30 days of
the finality of this decision, the Board holds a hearing and determines that new and different
evidence of Mr. Prather‘s conduct in prison subsequent to his 2007 parole hearing supports a
determination that he currently poses an unreasonable risk of danger to society if released on
parole.‘ ‖ (Maj. opn., ante, at p. 5.) Although the court‘s limitation on the type of new
evidence that could be considered was overly restrictive, there was nothing improper about
the court‘s requiring the Board to act in an expedited fashion. Such expedition is warranted,
because the Court of Appeal judgment means that the Board has been unable to justify its
denial of parole after a full judicial proceeding, and that in the interest of justice parole
should be speedily granted unless the Board demonstrates that new developments require
parole denial. Nothing in the majority opinion disallows the practice of ordering expedited
parole hearings on remand.
Second, the majority opinion addresses the first remand after a parole denial. Should
the Board on remand again deny parole, and the court again rule that the parole denial is
unjustified, then a more drastic intervention, such as an outright order that the Board grant
parole, may well be warranted. Of course even then, the Governor would still have the
prerogative, pursuant to article V, section 8, subdivision (b) of the California Constitution, to
review the decision. The extent to which courts‘ prior rulings would limit the Governor‘s
authority is beyond the scope of the present opinion.
MORENO, J.
5

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Prather and In re Molina
__________________________________________________________________________________

Unpublished Opinion

XXX NP opns. filed 4/16/09 – 2d Dist., Div. 6; 4/28/09 – 2d Dist., Div. 5
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S172903 & S173260
Date Filed: July 29, 2010
__________________________________________________________________________________

Court:

Superior
County: Los Angeles and San Luis Obispo
Judge: Peter P. Espinoza and Michael L. Duffy

__________________________________________________________________________________

Attorneys for Appellant:

Rich Pfeiffer, under appointment by the Supreme Court, for Petitioner Michael Prather.

Michael Satris, under appointment by the Supreme Court, for Petitioner Miguel Molina.

Munger, Tolles & Olson, Leo Goldbard; Cuauhtemoc Ortega; Alan L. Schlosser; Peter Eliasberg; and David Blair-
Loy for ACLU of Northern California, ACLU of Southern California and ACLU of San Diego and Imperial
Counties as Amici Curiae on behalf of Petitioner Miguel Molina.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Manual M. Medeiros,
State Solicitor General, Donald E. de Nicola, Deputy State Solicitor General, Julie L. Garland, Assistant Attorney
General, Jennifer A. Neill, Heather Bushman, Anya M. Binsacca, Gregory J. Marcot and Amanda Lloyd, Deputy
Attorneys General, for Plaintiff and Respondent Warden Ben Curry.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael Satris
Post Office Box 337
Bolinas, CA 94924
(415) 868-9209

Rich Pfeiffer
9752 Willow Glenn Circle
Santa Ana, CA 92705-6104
(714) 633-4728

Amanda Lloyd
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 620-6531


Petition for review after the Court of Appeal granted a petition for writ of habeas corpus. This case presents the following issue: When a court determines the Board of Parole Hearings abused its discretion in denying parole to an inmate, may it order the Board to find the inmate suitable for parole unless new and different evidence of the inmate's conduct in prison subsequent to the parole hearing at issue supports a determination that the inmate currently poses an unreasonable risk of danger to society if released on parole?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 07/29/201050 Cal. 4th 238, 234 P.3d 541, 112 Cal. Rptr. 3d 291S172903Review - Habeas (criminal)case consolidated

MOLINA (MIGUEL) ON H.C. (S173260)
MATHEWSON (RODERICK) ON H.C. (S180914)


Parties
1Prather, Michael B. (Petitioner)
California State Prison - Avenal
P.O. Box 9, 210-2-25L
Avenal, CA 93204

Represented by Rich Pfeiffer
Attorney at Law
9752 Willow Glenn Circle
Santa Ana, CA

2Hartley, James D. (Non-Title Respondent)
Represented by Amanda Leigh Lloyd
Office of the Attorney General
455 Golden Gate Avenue, Suite 1100
San Francisco, CA

3Board of Parole Hearings (Non-Title Respondent)
Represented by Amanda Leigh Lloyd
Office of the Attorney General
455 Golden Gate Avenue, Suite 1100
San Francisco, CA


Opinion Authors
OpinionChief Justice Ronald M. George
ConcurJustice Carlos R. Moreno, Justice Carol A. Corrigan, Justice Joyce L. Kennard, Justice Kathryn M. Werdegar, Justice Marvin R. Baxter, Justice Ming W. Chin

Disposition
Mar 30 2010Case Consolidated (see lead case)

Dockets
May 13 2009Petition for review filed
Non-Title Respondent: Hartley, James D.Attorney: Amanda Leigh Lloyd  
May 14 2009Record requested
 
May 14 2009Request for judicial notice received (pre-grant)
  Warden James D. Hartley, Respondent Amanda Lloyd, AG Staff
May 14 2009Received Court of Appeal record
 
Jul 1 2009Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including August 11, 2009, or the date upon which review is either granted or denied.
Jul 29 2009Petition for review granted
  The request for judicial notice is granted. Corrigan, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Werdegar, and Moreno, JJ.
Aug 7 2009Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Richard D. Pfeiffer is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Aug 28 2009Opening brief on the merits filed
Non-Title Respondent: Hartley, James D.Attorney: Amanda Leigh Lloyd   Warden James D. Hartley, Respondent Amanda Lloyd, AG staff
Sep 28 2009Request for extension of time filed
  to and including October 12, 2009, to file Petitioner Prather's answer brief on the merits.
Sep 30 2009Extension of time granted
  Based upon the representation of counsel for Petitioner Prather that he anticipates filing the answer brief on the merits by October 12, 2009, the request for extension of time is granted. No further extension of time is contemplated.
Oct 14 2009Answer brief on the merits filed
Petitioner: Prather, Michael B.Attorney: Rich Pfeiffer   CRC 8.25(b)
Nov 3 2009Reply brief filed (case fully briefed)
Non-Title Respondent: Hartley, James D.Attorney: Amanda Leigh Lloyd   Warden James D. Hartley, respondent
Mar 30 2010Case ordered on calendar
  to be argued on Tuesday, May 4, 2010, at 9:00 a.m., in San Francisco
Mar 30 2010Case consolidated - all subsequent events to be docketed in lead case
  In re Miguel Molina on Habeas Corpus (S173260). The above-captioned matters are consolidated for purposes of oral argument and opinion. For purposes of oral argument, respondent Department of Corrections is allocated 30 minutes and petitioners are allocated 15 minutes each in their respective actions (Molina, petitioner in S173260, and Prather, petitioner in S172903).
Apr 26 2010Supplemental brief filed
Petitioner: Prather, Michael B.Attorney: Rich Pfeiffer  
Jul 28 2010Notice of forthcoming opinion posted
  To be filed Thursday, July 29, 2010 @ 10 a.m.

Briefs
Oct 14 2009Answer brief on the merits filed
Petitioner: Prather, Michael B.Attorney: Rich Pfeiffer  
Aug 28 2009Opening brief on the merits filed
Non-Title Respondent: Hartley, James D.Attorney: Amanda Leigh Lloyd  
Nov 3 2009Reply brief filed (case fully briefed)
Non-Title Respondent: Hartley, James D.Attorney: Amanda Leigh Lloyd  
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jan 24, 2011
Annotated by zcarpenter

Facts:

Defendant, Prather, was sentenced to 25 years to life in 1982 after pleading guilty to first degree murder and robbery in the shooting death of Elroy Ruiz. After reaching his minimum eligible parole date in 2000, Prather eventually came before a Parole Board in 2005, where he explained that he was not the shooter, but that his codefendants threatened him with violence if he did not take the blame for the killing. The Parole Board found Prather suitable for Parole in 2005, and then again in 2006, based on the conclusion that he was a low-risk for repeat violence, but in each of those years the Governor reversed the parole determination. In 2007, after a third Parole Board hearing, Prather was denied parole, and the court of appeals later granted Prather relief under a writ of habeas corpus, finding that because the Parole Board did not take into account any new evidence, it was error to refuse him parole. The court of appeals directed the lower court to find Prather suitable for parole unless, within 30 days of the decision, they conducted a new hearing and found new evidence of Prather’s dangerousness.

Defendant, Molina, was convicted of second degree murder after he shot and killed Ruben Morales on a farm in Arroyo Grande, where both men worked. The men had a history of altercations, and after serving 18 years in prison Mr. Molina was found suitable for parole in 2002, after he informed the Parole Board that he had in fact acted in self defense. Molina had been eligible for parole since 1994. As with Prather, the Governor denied parole for Mr. Molina, and then in 2006, at a subsequent Parole Board hearing, Molina was denied parole on the grounds that his self-defense story was inconsistent with the record at trial. A superior court granted Molina habeas relief in 2008 after it found there was no evidence in the record to support the finding that Molina presented a current danger to society, relying in part on a 2005 mental health evaluation finding the same. The court of appeal reviewed this decision, and in a split decision remanded to the lower court with directions to instruct the Parole Board to release Molina on parole.

Procedural History:

The California Supreme Court granted review of two different cases from the Courts of Appeal, In re Prather (LA County) and In re Molina (San Luis Obispo County), in order to settle the issue of scope on an order directed to the Board of Parole Hearings when a reviewing court concludes that a decision to deny parole is not supported by "some evidence" that a prisoner remains a current threat to public safety. The Supreme Court did not consider the issue whether either appellate court decision was correctly decided, rather, review was limited to the question of scope.

Issues:

May a court, when reviewing the decision of a Parole Board to deny parole, instruct the Parole Board not to consider certain evidence in the record during a new hearing?

May a court, when reviewing the decision of a Parole Board to deny parole, deny the right of the Parole Board to conduct a new hearing at all by directing the Board to release the inmate in question without further review?

Holding:

A court may not, when reviewing the decision of a Parole Board, improperly limit the statutorily granted discretion of the Parole Board to consider all evidence weighing in favor or against parole.

Analysis:

Citing In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241, the California Supreme Court found that a decision granting habeas corpus relief after the denial of parole by the Parole Board should instruct the Parole Board to conduct a new suitability hearing in accordance with due process of law and should not place improper limitations on the types of evidence the Board is statutorily obligated to consider. The opinion directs courts from “engaging in speculation concerning the type of evidence that might change the calculus of the Board’s parole decision.” Instead, reviewing courts should make sure that Parole Boards retain discretion to determine whether a new hearing is necessary and whether, in light of the court’s findings, the inmate should be released.

The holding seems to rely on an issue of technical importance but little substantive distinction; noting that the Parole Board is bound by the court’s decision – so if a court rules that no new evidence exists in the record to support rejection of parole, the Parole Board is not allowed to reject parole after a subsequent hearing, unless altogether new evidence arises of the inmates dangerousness.

The Court upheld the principle that after a court has reversed the parole denial decision of the Parole Board, the Board may not deny parole based solely on arguments and evidence that have been presented, or reasonably could have been presented, at the prior parole hearing. However, the Court insists that based on principles of administrative law, the Parole Board has discretion, though limited, to make parole decisions themselves (i.e., a court cannot direct a Parole Board to make any specific decision in a parole hearing)

Concurrence (Moreno, J.)

Regulations:

Section 3041 and Title 15, section 2402, of the California Code of Regulations
Cal. Const., art. V, § 8, subd. (b)
Pen. Code, § 3041.2

Cases:

In re Rosenkrantz (2002) 29 Cal.4th 616
In re Fain (1983) 145 Cal.App.3d 540
In re Criscione (2009) 173 Cal.App.4th 60
In re Lazor (2009) 172 Cal.App.4th 1185
In re Barker (2007) 151 Cal.App.4th 346
In re Masoner (2009) 172 Cal.App.4th 1098
In re Palermo (2009) 171 Cal.App.4th 1096
In re Rico (2009) 171 Cal.App.4th 659
In re Gaul (2008) 170 Cal.App.4th 20
In re Ramirez (2001) 94 Cal.App.4th 549
In re Bowers (1974) 40 Cal.App.3d 359
In re Shoengarth (1967) 66 Cal.2d 295
In re Lugo (2008) 164 Cal.App.4th 1522
Hornung v. Superior Court (2000) 81 Cal.App.4th 1095