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In re Prather

July 29, 2010


Ct.App. 2/5 B211805 Los Angeles County Super. Ct. No. BH005392 Ct.App. 2/6 B208705 San Luis Obispo County Super. Ct. No. CR13298 Judge: Peter P. Espinoza and Michael L. Duffy

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

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 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.


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 -- 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 co-defendants encountered the victims Elroy Ruiz and Randolph William Carrier in a park where the victims had driven to purchase marijuana.*fn1 Prather and his co-defendants 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 co-defendants 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.*fn2 The 2007 parole hearing is the subject of our present review.

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 co-defendants 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 co-defendants. 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 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."*fn3

B. In re Molina

In 1984, petitioner Molina shot and killed the victim Ruben Morales.*fn4 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.*fn5

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 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 ...

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