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In re Macias

November 9, 2010


(Santa Clara County Super. Ct. No. 113003). Trial Judge: The Honorable Linda R. Condron.

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



In 1988, petitioner Raymundo Macias pleaded guilty to second degree murder and was sentenced to prison.*fn1 On August 23, 2007, the Board of Parole Hearings (Board) conducted a hearing and found Macias to be unsuitable for parole for the fifth time. Macias sought a writ of habeas corpus alleging that the Board's decision denied him due process. He argued that the Board applied the wrong standard and that there was insufficient evidence to support its finding that he was currently dangerous. The superior court agreed that the Board's decision denied Macias due process and ordered it to conduct a new hearing within 35 days.

Respondent, Michael Martel, Acting Warden at Mule Creek State Prison (Warden), appeals from the order.*fn2 He claims the trial court erred in granting relief and further claims that even if relief were appropriate, the court erred in ordering a new hearing within only 35 days.

As we shall explain, subsequent events have rendered the court's order moot, and, therefore, we reverse it. Although this renders it unnecessary for us to address the propriety of the trial court's ruling or the Board's 2007 decision to deny parole, we exercise our discretion to discuss an issue of continuing public importance raised in this case: reliance on an inmate's "lack insight" into the commitment offense as an unsuitability factor to deny parole.


After the appeal was filed, we stayed the trial court's order directing the Board to conduct a new hearing. While the appeal was pending, the Attorney General informed us by letter that on August 12, 2009, the Board did commence a new hearing for Macias in accordance with the normal schedule for hearings. However, at the new hearing, Macias waived his right to a determination of suitability for parole and voluntarily stipulated to unsuitability for three years until his next hearing. He explained to the Board that he had received a disciplinary citation in March 2009 and needed the additional time to remain discipline free.*fn3

We requested further briefing on whether the 2009 hearing and stipulation rendered the trial court's order or this appeal or both moot.

In his brief, the Attorney General claims the court's order is moot because Macias received the relief that was ordered by the trial court: an opportunity for a new hearing. Given the outcome of that hearing, the Attorney General argues that the propriety of both the trial court's order and the Board's 2007 decision to deny parole are moot. Accordingly, the Attorney General urges us to simply reverse the trial court's order.

Macias claims the trial court's order is not moot. He argues that if this court agrees that the Board's 2007 decision denied him due process, his stipulation should not be binding, and he should immediately be given a new parole hearing. He asserts that he would not have stipulated if, at that 2009 hearing, he faced only the disciplinary citation, which, he opines, was minor and would not have prevented him from demonstrating his suitability for parole. However, he complains that in addition to the citation, he also had to face the Board's 2007 decision to deny parole. According to Macias, that decision, which the trial court found had violated his right to due process, made it a foregone conclusion that the Board would again deny parole. Thus, because the Board's 2007 decision loomed over him, he claims the stipulation should not be given effect if and when this court upholds the trial court's ruling. Under the circumstances, he urges us to address the propriety of the Board's 2007 decision, affirm the trial court's order, and lift the stay. We are not persuaded.

At the hearing in 2009, the controlling issue before the Board would have been whether Macias was currently dangerous. The Board's focus would not have been on its previous denial of parole in 2007; rather the pertinent focus would have been on Macias's record, his conduct in prison, and his rehabilitation, with special attention paid to the period since his last hearing. It is true that any recommendations by the Board in 2007 would have been relevant in determining Macias's suitability for parole at the hearing in 2009.*fn4 Apart from such recommendations, however, the fact that the Board denied parole in 2007 and had done so numerous times before that and the prior findings it had made concerning his suitability for parole would not have been particularly relevant or probative in determining whether in 2009, Macias was currently dangerous or suitable for parole.

Moreover, before the 2009 parole hearing, the trial court had ruled that the Board failed to apply the correct standard and that its 2007 decision denied Macias due process. Although the state's appeal from that ruling was pending in 2009, the trial court's ruling provided Macias with grounds to object if, at the 2009 hearing, he thought the Board was repeating the errors it had made at the 2007 hearing, applying the wrong standard, or improperly using its prior denial as a reason to deny parole again. Indeed, the trial court's ruling established a likelihood of judicial relief if the Board did so. Nevertheless, despite the trial court's ruling and its potential affirmance on appeal, Macias appeared before the Board, immediately elected to waive his right to a determination of suitability, and stipulated to a period of unsuitability.

We further point out that when he volunteered his stipulation, Macias did not state that he felt compelled to do so or that his stipulation was motivated in large part by a belief that the Board's 2007 decision rendered another denial a foregone conclusion. He did not suggest that he would have not be voluntarily stipulating and would instead want a full hearing if he were facing only the one disciplinary citation. Macias also did not state or imply that he would be entitled to an immediate new hearing, notwithstanding the stipulation, if later, the trial court's order was upheld on appeal. Nor did he attempt to condition or qualify his stipulation on the outcome of the appeal. He did not even mention it. Rather, Macias immediately offered to stipulate to his unsuitability, explaining only that he had received a citation and felt that he needed the period of time until his next scheduled hearing to remain discipline free to establish suitability. He also said that his decision to waive a hearing on the merits of his current suitability and stipulate to unsuitability was knowing and voluntary.

Given the record, we are not convinced that the Board's 2007 denial of parole had any influence Macias's decision to stipulate. At the 2009 hearing, he had the right and opportunity to demonstrate suitability, and he had nothing to lose by proceeding with a hearing on the merits if he thought he had a reasonable chance for parole. This is especially so if, as he now claims, the disciplinary citation was insignificant and would not have posed an insurmountable barrier to a finding of suitability. However, we infer a different calculation concerning the effect of the citation at the time of the stipulation. Since the citation and the need to remain discipline free were the only reasons Macias gave for the stipulation, it is more reasonable to infer that, in Macias's view, the citation and the need to rehabilitate his institutional record rendered the denial of parole a foregone conclusion. Moreover, the fact that he voluntarily stipulated to unsuitability without qualifying his stipulation on the outcome of this appeal or suggesting that the trial court's order remained potentially viable and enforceable implies, in our view, an understanding the stipulation was binding and would remain so regardless of the outcome on appeal.

Under the circumstances, therefore, Macias's claim that the Board's 2007 denial of parole influences his decision to stipulate does not represent a compelling reason to address the propriety of that decision; and even if we did so, he does not convince us that the stipulation was qualified by the outcome of the appeal or should not be binding and, in effect, supersede the trial court's order.

Macias argues that if we were to agreedthat the Board's 2007 decision was defective, then that defective decision would constitute an actual injury--i.e., denial of due process--for which he should be entitled to the remedy of an immediate new hearing. Otherwise, he argues, his constitutional injury would go unredressed. We disagree.

In his petition below, Macias did not claim the right to immediate release on parole as a remedy. He merely sought a new hearing that comported with due process. The trial court ordered that remedy. Although this court stayed the trial court's order, Macias actually got a new hearing and the opportunity to establish his suitability for release on parole. Although that hearing took place as part of the normal course of scheduled parole hearings, it had to comport with due process and thus was the functional equivalent of the remedy he sought and obtained from the trial court. Nevertheless, Macias knowingly and voluntarily waived his right to have the Board determine his suitability at that time. He did so because of the disciplinary citation and the need to remain discipline free for a period of time. That he elected to waive a hearing and stipulate to unsuitability for those reasons does not negate the fact that he was offered a full hearing.

In sum, we conclude that Macias's stipulation renders the trial court's order moot. Accordingly, we need not address the propriety of the Board's 2007 decision to deny parole.

Macias claims that even if the trial court's order is moot, we should address the propriety of the Board's 2007 decision. He argues that if, as the trial court found, the Board failed to apply the proper standard in denying parole, the Board could repeat that error in subsequent parole determinations. Thus, Macias urges us to review the previous decision to help guide his future hearings.

" 'An appellate court will not review questions which are moot and which are only of academic importance.' [Citations.] A question becomes moot when, pending an appeal . . . events transpire that prevent the appellate court from granting any effectual relief. [Citations.]" (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 419.) Such is the case here.

Furthermore, "[t]he rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court." (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912; accord, Salazar v. Eastin ((1995) 9 Cal.4th 836, 860.) Thus, courts regularly decline invitations to issue them. (See, e.g., In re Tobacco Cases I (2010) 186 Cal.App.4th 42, 53; Gardner v. Superior Court (2010) 185 Cal.App.4th 1003, 1015.)

However, we note that even if a question or issue is technically moot, a reviewing court has discretion to address issues that have continuing public importance and may otherwise evade review, and courts are not hesitant to do so in order to provide necessary guidance in future proceedings. (E.g., Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1001; Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1.; People v. Cheek (2001) 25 Cal.4th 894, 897-898; Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 746-747.)

Such an issue arises in this case. In denying parole in 2007, the Board found that Macias was currently dangerous, and it based that finding primarily on the heinous nature of the commitment offense and its view that Macias lacked insight into the seriousness of the offense and its causes. Although we need not discuss whether there was some evidence to support the Board's ultimate determination that Macias was currently dangerous and, therefore, unsuitable for parole, its reliance on the view that he lacked insight does raise the issue of what it means to "lack insight." We consider this to be an issue of continuing importance because "lack of insight" is an inherently vague concept and an inmate's "lack of insight" is increasingly relied on as a reason to deny parole. Accordingly, we exercise our discretion to discuss and clarify this issue in order to ensure both the propriety and consistency of findings of "lack of insight."


A. Legal Framework for Parole ...

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