The opinion of the court was delivered by: Stephen G. Larson, District Judge.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; (3) the Court determines that the Governor's reversal of the Board's decision to grant parole to petitioner is not supported by "some evidence" in the record, and the Court, thus, finds petitioner was denied due process of the law; (4) Ground One is denied on the merits; and (5) Judgment shall be entered granting the petition for writ of habeas corpus, and reinstating the parole date set by the Board of Prison Terms.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.
Pursuant to the Order of the Court adopting the findings, conclusions, and recommendations of United States Magistrate Judge Rosalyn M. Chapman,
IT IS ADJUDGED that the petition for writ of habeas corpus is granted, and the parole date set by the Board of Prison Terms shall be reinstated.
REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE
ROSALYN CHAPMAN, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Stephen G. Larson, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On July 27, 1984, in Riverside County Superior Court case no. CR21509, a jury convicted petitioner Charles McCarnes, aka Charles Francis McCarns III, aka Charles Francis McCarnes III, of two counts of second degree murder in violation of California Penal Code ("P.C.") § 187(a) (counts 1 & 2), two counts of vehicular manslaughter with gross negligence in violation of P.C. § 192.3(a) (counts 3 & 4), one count of driving under the influence with bodily injury in violation of California Vehicle Code ("Veh. C.") § 23153(a) (count 5), one count of driving under the influence with .10% alcohol and bodily injury in violation of Veh. C. § 23153(b) (count 6) and one count of hit and run resulting in death in violation of Veh. C. § 20001 (count 7). Lodgment, Exhs. 1-2; People v. McCarnes, 179 Cal.App.3d 525, 527, 224 Cal.Rptr. 846 (1986). The petitioner had previously pleaded guilty to a misdemeanor charge of driving while his license was suspended or revoked for driving under the influence in violation of Veh. C. § 14601.2(a) (count 8), and he had admitted four previous convictions for driving under the influence of alcohol. Ibid. On October 2, 1984, petitioner was sentenced to two concurrent terms of 15 years to life plus a consecutive determinate term of four years and 8 months. Lodgment, Exh. 1; McCarnes, 179 Cal.App.3d at 527, 224 Cal.Rptr. 846.
The petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the judgment in a published opinion filed March 31, 1986. McCarnes, 179 Cal.App.3d at 525-36, 224 Cal.Rptr. 846. The petitioner then filed a petition for review in the California Supreme Court, which denied the petition on July 31, 1986.
The California Court of Appeal made the following factual findings in affirming petitioner's convictions and sentence:
About two o'clock on a summer Saturday afternoon [in 1983], [petitioner] was driving his Chevrolet west on Allesandro Boulevard just west of its intersection with Moreno Beach Boulevard, east of Riverside. His blood alcohol level was about .27 percent.*fn2 He tried to pass a Datsun station wagon at a speed of "65-plus."*fn3 During the passing maneuver, [petitioner] drove into the eastbound lane of Allesandro (a two-lane highway) and collided head-on with a VW station wagon. There were six people in the VW: Frank Ferreira and his wife Jacqueline; their baby daughter Jennifer, who was almost 2; their neice [sic] Lisa; their teenage nephew Patrick, and Frank's 15-year-old sister Elizabeth.
After the collision, [petitioner] walked over to the vicinity of the VW. A bystander was giving artificial respiration to the baby, who, according to a witness, was missing "a big chunk of her head." [Petitioner] leaned over, said " 'Don't die, baby, don't die' " and walked away. A deputy sheriff arrived on the scene and was told that [petitioner] had left the scene. The sheriff drove after [petitioner]. When the sheriff approached him, [petitioner] ran into a field. The sheriff ran after him and overtook him. [Petitioner] told the sheriff that he had tried "to do CPR on the baby." [¶] A CHP officer administered a field sobriety test to [petitioner] within an hour of the collision. The officer testified at trial that in his opinion [petitioner] was "extremely intoxicated." The criminalist (see fn. 1, supra ) testified that a person had to be a "pretty experienced drinker" to reach a level of .27 percent, and that many persons would become unconscious with a blood alcohol level of less than .30 percent. [¶] As a result of injuries received in the collision, Frank Ferreira and his baby daughter died; Frank's wife Jacqueline had four broken ribs; their nephew Patrick had two broken arms, a broken femur and a broken pelvic bone; their neice [sic] Lisa had torn ligaments in her knee, and Frank's sister Elizabeth had a broken nose and front teeth knocked out.
McCarnes, 179 Cal.App.3d at 527-28, 224 Cal.Rptr. 846.
Between 1995 and 2003, the California Board of Prison Terms ("Board") found petitioner unsuitable for parole on seven occasions.*fn4 Lodgment, Exh. 3. On October 19, 2004, at petitioner's eighth parole suitability hearing, a panel of the Board found petitioner suitable for parole. Lodgment, Exh. 4. In reaching its conclusion, the Board stated:
[T]he Panel reviewed all of the information received from the public and relied on the following circumstances in concluding that you are suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The things that we considered in coming to this decision was [sic][you] ha[ve] no juvenile record of assaulting others.  ... [F]or the most part [you] do[ ] seem to have a very stable social history and reasonably stable relationships with others.  [You] ha[ve] certainly participated in programs while [you have] been incarcerated that will enhance [your] ability to function within the law upon release. And those would include self-help programs such as Impact. But of most importance, [your] participation in substance abuse programming since 1989.[You] ha[ve] completed two vocational programs[:] electronic data processing and landscaping[,] and ha[ve] also made an effort to keep up [your] knowledge regarding air conditioning refrigeration that [you] had started to educate [your]self on prior to this commitment offense. [You] lack[ ] a significant criminal history, although I do want to note that once again, that we did consider the fact that [you] certainly had a history of driving ... while intoxicated and that in this particular case, that would be significant. So [it is] not ... that [you] lack[ ] a significant criminal history.... It's just that it seems to all fall within a certain period of time. [You] certainly ha[ve], we believe, a greater understanding of the commitment offense and ha[ve] matured and that ... should-and certainly the psychiatric evaluations agree [-] reduce [your] probability of recidivism. [You] do[ ] have ... good and realistic parole plans. [You] ha[ve] several job offers. [You] ha[ve] lots of family support. [You have] clearly maintained close family ties while [you have] been in prison . [You have] had positive institutional behavior. [You have] had no [CDC] 115's at all since [you have] been incarcerated.  And I do believe that [you] ha[ve] an understanding of what the impact of this crime was and that [you are] remorseful.  The psychiatric evaluation dated June of 2003, authored by Doctor Payne is very supportive of release. It states that if released to the community, Mr.-I'm sorry. If released to the community, [you] would not present a significant risk to the public. Says that the likelihood of relapse is virtually nil, as past risk factors are negligible at the present time. [You] do[ ] see that [you were] diluted [sic] in [your] way of thinking in the past, as is the case of an alcoholic. He also says [you] ha[ve] good insight into [your] past and current behavior and ha[ve] been abstinent from alcohol. [You have] developed strategies to deal with the unlikely probability of relapse, which are the basics for people with alcohol dependence problems. And the last psych report, which was in 1989, in August, Doctor Carswell also said that at that time, [you] showed good insight into [your] commitment offense. [Your] judgment appeared to be sound and if released to the community, [your] violence potential is estimated to be no higher than the average citizen in the community.
The results of what you did, I think are the part that's made it really difficult for everyone in dealing with this case. The fact that you drank-you drank and drove is bad enough. But the fact that this family was destroyed by this is really awful. But it's our feeling that you've done everything that you can do to ensure that nothing like this will ever happen again. So we just hope that you will continue. And also I think it's important for you to remember that this is just the first step and that you know, if for some reason Decision Review or the Governor's Office decides that they disagree with us, that they believe that we've made a mistake, I just want to encourage you to continue your positive programming and not be discouraged by that. Here we really do feel that you've done everything that you can do to address the issue of your-of your alcoholism. And that completes the reading of the decision.
Lodgment, Exh. 4 at 66-68, 70-71 (emphasis added). The Board then determined petitioner's parole date:
The base life offense of which the prisoner has been convicted is second-degree murder, Penal Code Section 187. The offense occurred on 6/23/83. The term is derived from the matrix located in the CCR Title XV at 2403, which is second degree murder committed after 11/8/78. The Panel finds that Category C Three is appropriate, and that there was no prior relationship to the victims and the victims died as a result of severe trauma caused by the inmate. The Panel assesses a term of 252 months for the base offense and notes that this is the aggravated term. The circumstances in aggravation are as follows: One, that one of the victims in particular was very vulnerable because of being of such a young age. The prisoner has a history of criminal behavior, for which the term is not being enhanced. And all of that behavior was related to his drinking and driving. And the manner in which the crime was committed certainly created a potential for serious injury to people other than the numerous victims that were injured and killed in this particular case. In addition to the life offense, the Panel assessed 98-96 months for the [concurrent] life sentence that was imposed by the court.
So that's an additional 96 months, making a total term of 348 months. So the total term calculation is as follows: Base life term, 252 months. Other terms, 96 months, for a total of 348. The post-conviction credits from 4/18/87 to today's date are 70 months, leaving a total period of confinement of 278 months. The Panel is imposing the following special conditions of parole: That would be not to use alcoholic beverages, to submit to anti[-]narcotic and THC testing and to attend the parole outpatient clinic for evaluation....
[W]hen you start to compute the time, you'll realize that you still have a substantial period of time left to do in custody. 278 months is somewhere around 23 years.... And so you've only got credit for 17 years at this point because your term didn't start until 1987, because of the DSL term that you had to serve. So you still have some time to do. And again, if the Governor approves the action that we've ...