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In re Lewis

March 13, 2009

IN RE DONALD RAY LEWIS, ON HABEAS CORPUS.
[AND FOUR OTHER CASES.*FN1 ]



(Santa Clara County Super. Ct. Nos. 68038 & 108543, 127611, 71194 & 71614). Hon. Linda R. Condron.

The opinion of the court was delivered by: Premo, J.

CERTIFIED FOR PUBLICATION

In five separate proceedings below, the superior court issued five substantially identical orders*fn2 in which it found that California Code of Regulations, title 15, section 2402, subdivision (c)*fn3 is unconstitutionally vague "as applied" by the Board of Parole Hearings (Board) and that the Board is violating the separation of powers doctrine by arrogating to itself absolute power over parole matters. Based on these findings, the superior court directed the Board to develop a program to train its members in the application of parole suitability criteria as explained by relevant state and federal judicial opinions, to include provisions for continuing education of commissioners as new relevant case law is published. The superior court further directed that, prior to implementation, the newly-developed training program be submitted, along with any associated rules and regulations, for the superior court‟s review and approval. Once the court-approved training program was in place, each of the petitioners would "receive a new hearing before a Board that does not operate with the unfettered discretion and caprice demonstrated by the evidence here presented."

The Board appealed from each of the superior court‟s orders. Since each of these appeals challenges the superior court‟s findings and its authority to impose and oversee the development of a training program for the Board, we ordered that the appeals be considered together for purposes of oral argument and decision. We also stayed all five orders pending the decision on appeal. In these consolidated appeals,*fn4 we conclude the superior court erred in finding that the specified regulation (Regs., § 2402, subd. (c)) is vague as applied and that the Board is violating the separation of powers doctrine. Accordingly, we shall reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

A brief summary of the factual and procedural background of each matter follows.

A. The Bragg matter (H032045)

In February 1986, while robbing a gas station, Bragg beat the attendant with a stick, mortally wounding him. From December 1985 to the time of his arrest in March 1986, Bragg also committed four other robberies, armed with a wrench on one occasion and with a two-by-four on the other three occasions. In two of these robberies, Bragg hit his victims on the head with his weapon, knocking them to the ground "in a pool of blood." In the other two robberies, he attempted to hit the victims with his two-by-four, but missed. In 1987, Bragg pleaded guilty to second degree murder (Pen. Code, § 187)*fn5 and robbery (§ 211) and was sentenced to an indeterminate term of 15 years to life.

In 2002, the Board of Prison Terms*fn6 denied parole to Bragg, and in May 2003, Bragg petitioned the superior court for a writ of habeas corpus. The superior court issued an order to show cause on the petition, and subsequently ordered an evidentiary hearing on the issue of whether or not the Board‟s parole hearing process was "based on a generalized policy of denying parole without truly examining the merits of the [inmate‟s] case." In preparation for that hearing, the superior court ordered an "examination of the decision pages from the other Board hearings at and around the time of [Bragg]‟s [hearing]."

In compliance with the superior court‟s order, the Board provided copies of the relevant portions of the transcripts of 679 life-term inmates who had parole suitability hearings between July 31, 2002, and October 31, 2002.

B. The Ngo matter (H032046)

"In 1988, when he was 18 years old, Viet Mike Ngo killed a 14-year-old boy in a drive-by shooting. While a passenger in an automobile traveling on Highway 101, Ngo fired four bullets into a nearby vehicle, striking and fatally injuring the victim. Ngo pleaded guilty to second degree murder (§ 187) in 1989, and he was sentenced to 15 years to life in prison." (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1221, fn. omitted.)

In 2003, the Board denied Ngo parole, and in 2004, Ngo filed a petition for a writ of habeas corpus, challenging the 2003 parole denial. In August 2004, the superior court issued an order to show cause, in which it ordered discovery to determine if, in over 90 percent of the cases during the year Ngo‟s hearing was held, the Board stated the crime was exceptionally or especially callous, dispassionate, calculated or cruel. The Board sought a writ of mandate, prohibition or other relief, which was granted and, in a published decision, this court ordered the superior court to vacate both the order to show cause and the discovery order. (Board of Prison Terms v. Superior Court, supra, 130 Cal.App.4th at pp. 1220-1224.)

In December 2005, the superior court issued a new order to show cause, directing the Board to provide transcripts of parole hearings conducted in August, September and October 2003 for inmates serving life terms for murder.

In 2006, the Board again denied parole to Ngo. Ngo filed a second petition for a writ of habeas corpus. The superior court again issued an order to show cause directing that Ngo‟s two petitions be combined for purposes of rendering a final decision, on the grounds that the claims raised in the 2006 petition were similar to those raised in the 2004 petition.

On January 26, 2007, the superior court ordered the Board to provide transcripts of all inmates who had parole hearings in April 2006, "along with the transcript of every hearing in which those inmates were denied parole. For all the inmates who were granted parole, [the Board] is to provide the transcript of the most recent prior hearing at which they were denied parole."

In compliance with the court‟s order, the Board provided hearing transcripts of 585 life-term inmates*fn7 who had parole suitability hearings between July 1, 2003, and April 30, 2006.

C. The Jameison Matter (H032047)

In December 1978, Jameison shot the victim twice in the head, killing him. The victim was found lying in bed, and police concluded there had not been a struggle prior to the shooting. Jameison had been living with the victim while Jameison was going through a divorce. In 1979, Jameison was convicted of ...


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