The opinion of the court was delivered by: Claudia Wilken, District Judge.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING RESPONDENT'S MOTION TO DISMISS
On November 13, 2007, Petitioner BranDee Tripp, a prisoner then incarcerated at the California Institution for Women, through counsel, filed a petition for a writ of habeas corpus, alleging that the Governor violated her federally protected liberty interest when he reversed her grant of parole. The Court issued an order to show cause why the writ should not be granted. On June 23, 2008, Respondent Warden Dawn Davison filed an answer and on July 2, 2008 Petitioner timely filed a traverse. On September 25, 2008, Petitioner was released on parole. Soon after, Respondent Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, filed a motion to dismiss the habeas petition as moot.*fn1 Petitioner opposes the motion. For the reasons set forth below, the petition is GRANTED and the motion to dismiss is DENIED.
On February 11, 1981, pursuant to a guilty plea to second degree murder, Petitioner was sentenced to fifteen years to life for the July 3, 1979 murder of ten-year-old Tameron Carpenter. At the time, Petitioner was twenty years old.
At twelve hearings between 1986 and 2001, the Board of Parole Hearings (Board) found Petitioner unsuitable for parole. On November 6, 2002, at her thirteenth parole hearing, the Board found Petitioner suitable for parole. On April 4, 2003, former Governor Gray Davis reversed the Board's grant of parole. On May 17, 2004, at her fourteenth parole hearing, the Board again found Petitioner suitable for parole. On October 11, 2004, Governor Arnold Schwarzenegger reversed the Board's grant of parole.
Petitioner filed petitions challenging Governor Schwarzenegger's decision in the Monterey County Superior Court and the California Court of Appeal. On March 28, 2007, the Court of Appeal issued a reasoned opinion affirming the Governor's decision. See In re Tripp, 150 Cal.App.4th 306, 58 Cal.Rptr.3d 64 (2007). On August 15, 2007, the California Supreme Court denied Petitioner's petition for review without comment.
The Court of Appeal summarized the commitment offense as follows:
On July 8, 1979, 10-year-old Tameron Carpenter was strangled to death. Both Tameron and her 19-year-old sister, Betty Ann Maddocks, were scheduled to testify in a criminal case against 53-year-old William Record. Mr. Record was accused of molesting both Tameron and Ms. Maddocks. To eliminate them as witnesses, Mr. Record offered to pay his stepdaughter's husband, 17-year-old Hilton Tripp, to kidnap and murder Tameron and Ms. Maddocks. Mr. Tripp, his 20-year-old wife, BranDee Tripp, and his friend Randy Cook first planned to kidnap and kill Ms. Maddocks. That plan failed. They then decided to kidnap and kill young Tameron.
Mrs. Tripp was a family friend and had access to Tameron. On the day of the murder, she arranged to take Tameron on a swimming trip. Before the trip, she asked Tameron to go to the store and pick up some drinks. Once Tameron was at the store, she encountered Mr. Hilton and Mr. Cook who offered her a ride home. Tameron accepted. The two men then drove Tameron to a campsite where Mr. and Mrs. Tripp were living. They took Tameron into the Tripps' tent, tied her up, and placed a cord from the tent around her neck. Mr. Tripp pulled on one side while Mr. Cook pulled on the other-until Tameron died. They then buried her in a grave that they had dug near the tent.
When interviewed by police, Mrs. Tripp denied any knowledge of Tameron's whereabouts. Mr. Tripp, however, confessed to police that he was involved in the kidnap-murder and subsequently took them to the campsite where Tameron's body was buried. Mrs. Tripp was arrested the next day. And Mr. Cook later surrendered to the police.
At her parole hearing in 2004, at which the Board for the second time concluded that Petitioner was suitable for parole, it specifically noted that Petitioner
would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The prisoner, while imprisoned, has enhanced her ability to function within the law upon release through participation in educational programs. She has obtained a GED, [and participated in] vocational programs. She has obtained a vocational certificate in forklift operation and also in vocational word processing. She's also, through self-help, taken the following: She's been in AA and NA since ... 1988. She's been in the SOS program.*fn2 She's taken the Women Against Abuse program, the American Bible Academy, Arts and Correction Music Program, the Relapse Prevention program, the HIV/AIDS prevention program, and Breaking Barriers.... The prisoner lacks a significant criminal history of violent crime. [The prisoner's] maturation, growth, greater understanding, and advanced age has reduced the probability of her recidivism. The prisoner has realistic parole plans, which includes a job offer and family support. [I w]ould say that I would rate the parole plans as superior.... She has had no 115s since 1988. *fn3 Her last 115 was [for a] failure to report to a work assignment. She also has had a few 128-A [violations]. The last was in 1999 for excessive clothing. And prior to that, was three years, misuse of state property. And then the last was in 1988 prior to that. So we feel that she has a good disciplinary record while in custody. Prisoner shows signs of remorse. She has indicated that she understands the nature and the magnitude of the offense and accepts responsibility for her criminal behavior and has a desire to change towards good citizenship.
The Board also cited Petitioner's most recent psychological evaluation performed in January, 2004. The report noted, "The inmate has not been dangerous within a controlled setting. I do not believe she will be dangerous if released to the community." Pet. Ex. D at 3. The report also stated that "the inmate has been motivated in her self-discovery and has improved dramatically over the years, to the point where she has matured significantly." Id . The report concluded that "risk factors as always would be if she was ever tempted to resort to acts of criminality though given her level of peace and contentment, I would not suspect that to be the case." Id.
On October 11, 2004, the Governor, pursuant to California Penal Code § 3041.2, reviewed the evidence considered by the Board and reversed the grant of parole. In his decision, the Governor found that "after carefully considering each of the factors the Board is required to consider, the gravity of the murder Mrs. Tripp perpetrated upon young Tameron presently outweighs the positive factors tending to support her parole." Pet. Ex. C. The Governor also commented that "the manner in which this crime was planned and carried out-particularly against one so young and vulnerable-demonstrates exceptional depravity and an utterly callous disregard for human life and suffering." Id.
The Governor also concluded that Petitioner "helped plan the kidnap and murder" and that she was involved in the decision "to kidnap and kill" Tameron. The Governor's conclusion about Petitioner's role in the crime is based on her statements at the May, 2004 parole hearing. The Governor stated that
Mrs. Tripp maintains that she did not intend for Tameron to be killed. During her 2004 parole hearing, she told the Board that her husband "promised me that no one would get hurt" and that "in my head, I didn't think that anything could go wrong, and I didn't think far enough to know that her life would be taken." But at that same hearing, she admitted to suggesting various ways to kill Tameron, and explained, "I guess that's why I ended up being considered the person in charge." In her 1999 mental-health evaluation, Mrs. Tripp said that she refused to be involved in the physical abduction of Ms. Maddocks-but was willing to help lure her outside to be kidnapped. She also was agreeable to planning a way for her husband and Mr. Cook to kidnap Tameron. Her statements are inconsistent. Nevertheless, she says she accepts responsibility and is sorry for Tameron's murder.
Id. Although the Governor described these inconsistent statements, he did not rely on them to reverse the Board's parole grant. As noted above, the Governor denied Petitioner parole because "the gravity of the murder outweighs the positive factors tending to support her parole." Id.
In the petition for a writ of habeas corpus that Petitioner filed in the Monterey County Superior Court after the Governor issued his decision, she alleged that the Governor's decision was not supported by some evidence, and that its sole reliance on the circumstances of the commitment offense violated her federal due process rights. The court's denial of the writ explained that "the Governor may deny parole based solely on the nature of the commitment offense, so long as he identifies specific elements of the commitment offense showing the inmate would pose an unacceptable risk to the public." Resp. Ex. 5(G). The court concluded that "the Governor's October 11, 2004 decision, which contains a thorough description of Petitioner's commitment offense, clearly meets this standard." Id.
On Petitioner's petition to the Court of Appeal, that court noted that "the Governor's parole denial is based entirely on the commitment offense." In re Tripp, 150 Cal.App.4th 306, 314, 58 Cal.Rptr.3d 64 (2007). The court then stated that " `denial of release solely on the basis of the gravity of the commitment offense warrants especially close scrutiny. [T]he gravity of the commitment offense or offenses alone may be a sufficient basis for denying a parole application, so long as the Board does not fail to consider all other relevant factors.' " Id. at 320, 58 Cal.Rptr.3d 64 (quoting In re Scott II, 133 Cal.App.4th 573, 595, 34 Cal.Rptr.3d 905 (2005)). Denying the writ, the court held that "it appears that the Governor has provided petitioner with an individualized consideration of the relevant factors," therefore, "we cannot say that due process required the Governor to strike a different balance." Id.
The court also concluded that there is "some evidence that petitioner participated in planning not only the kidnapping, but the 1979 murder of Tameron. This evidence also supports the Governor's conclusion that petitioner, at age 45, remained dangerous to public safety." Id. at 318, 58 Cal.Rptr.3d 64.
As noted above, the California Supreme Court summarily denied Petitioner's petition for review. Resp't Ex. 13, Aug. 15, 2007 ...