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In re Masoner

December 11, 2009


APPEAL from an order granting a petition for a writ of habeas corpus of the Superior Court of Los Angeles County, Peter Paul Espinoza, Judge. Affirmed. (Los Angeles County Super. Ct. No.

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



In December 2007, the Board of Parole Hearings (Board) granted respondent James Masoner parole. Governor Arnold Schwarzenegger, however, reversed the Board's decision. Masoner then filed a petition for a writ of habeas corpus, which was granted by the superior court. Appellant Ben Curry, the warden of the prison where Masoner is incarcerated, appeals the order granting Masoner's petition.

Under California law, Masoner is entitled to be released on parole if he does not currently pose a danger to public safety. (In re Lawrence (2008) 44 Cal.4th 1181, 1191 (Lawrence).) Appellant does not challenge the superior court's finding that there was no evidence that Masoner currently poses such a danger. Rather, appellant contends that the remedy provided by the superior court of reinstating the Board's decision violated the Governor's constitutional and statutory right to review the Board's decisions. Appellant contends that the proper remedy was to remand the matter to the Governor for further consideration. We disagree.

Where, as here, the superior court finds that there is no evidence supporting the Governor's reversal of the Board's decision granting an inmate parole, the superior court has the authority to reinstate the Board's decision without remanding the matter to the Governor. We therefore affirm the superior court's order.


In 1987, Masoner drove a vehicle while under the influence of alcohol into a house, killing a four-year-old child and injuring others. Masoner was convicted of second degree murder, vehicular manslaughter while driving under the influence and driving under the influence. He was sentenced in 1988 to a term of 15 years to life with the possibility of parole. Masoner was 47 years old at that time.

Masoner, a college graduate, had a long career in the insurance field prior to his conviction in 1988. He had no juvenile record and one adult conviction for driving under the influence in 1982.

Masoner has been a model prisoner. He has not been subject to any disciplinary action. He has completed vocational training, worked at various positions, participated in self-help programs and therapy, including Alcoholics Anonymous, and tutored other inmates.

Prior to the December 2007 decision by the Board which is the subject of this appeal, Masoner received positive reports from the prison's mental health professionals. These reports indicated that Masoner did not consume alcohol while in prison, that he had a good plan to stay sober if released on parole, and that Masoner accepted responsibility for the death of the victim of his crimes. The reports also indicated that Masoner had no mental health problems and that his potential for violence in the community was no more than that of the average citizen.

On December 6, 2007, the Board held a parole suitability hearing and found Masoner suitable for parole.*fn1 However, on May 2, 2008, the Governor reversed the Board's December 2007 parole decision. The Governor cited the nature of the commitment offense and Masoner's alleged lack of insight into his crime as grounds for his reversal.

On January 7, 2009, Masoner filed a petition for a writ of habeas corpus in the superior court challenging the Governor's reversal of the Board's December 2007 decision. The superior court granted the petition on July 31, 2009. The superior court concluded: "The Governor's decision to reverse the Board's finding that the Petitioner is suitable for parole is not supported by some evidence in the record of the Petitioner's current risk of danger to society.... As nothing in the record suggests that Petitioner is unsuitable for parole, the Governor's reconsideration would be futile. Thus, the Governor is ordered to vacate his May 2, 2008 decision. The Board's December 6, 2007 decision is hereby reinstated. The Petitioner is ordered released in accordance with the parole date that the Board calculated."

Appellant filed a timely appeal of the superior court's July 31, 2009, order and promptly filed in this court a petition for a writ of supersedeas. We granted the petition and stayed the superior court's ...

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