The opinion of the court was delivered by: Nicholson, Acting P.J.
CERTIFIED FOR PUBLICATION
ORIGINAL PROCEEDING on a petition for writ of habeas corpus. Petition dismissed as moot and order to show cause discharged.
Petitioner Damian M. Miranda petitions this court for writ of habeas corpus. He alleges the Board of Parole Hearings (Board) violated his due process rights at a parole-suitability hearing in 2007 because its determination that he was not suitable for parole was not supported by "some evidence" that he remained dangerous. While Miranda's petition was pending, he was released from prison after the Board found him suitable for parole in a new hearing.
Despite his release, Miranda argues that this petition is not moot because, if we find that the Board violated his due process rights in the 2007 parole-suitability hearing, we can credit the time he should have been released toward his parole period. We reject this argument against mootness because, as the California Supreme Court recently held, the remedy for a violation of due process at a parole-suitability hearing is a new hearing comporting with due process. (In re Prather (2010) 50 Cal.4th 238 (Prather).) Because Miranda has been released, a new hearing is unnecessary. Therefore, even assuming the Board violated Miranda's due process rights at the 2007 parole-suitability hearing, the petition is moot.
Law Concerning Parole Suitability
When an inmate is serving an indeterminate prison term, the Board, one year before the inmate's earliest possible parole date, must "normally set a parole . . . date . . . ." (Pen. Code, § 3041, subd. (a).) The Board "shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting. . . ." (Pen. Code, § 3041, subd. (b).) "Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from prison." (Cal. Code Regs., tit. 15, § 2402, subd. (a).)
Judicial review of the Board's parole-suitability decision is limited to determining "whether 'some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous." (In re Lawrence (2008) 44 Cal.4th 1181, 1191.) The court must find that the Board violated the inmate's due process rights if the Board's determination is not supported by some evidence of current dangerousness. (Id. at p. 1227.)
Circumstances of This Case
In 1984, Miranda was convicted of second degree murder and assault with a deadly weapon and sentenced to an indeterminate term of 19 years to life in state prison.
On June 3, 2003, the Board held a parole-suitability hearing concerning Miranda. It determined that Miranda was suitable for parole. The Governor, however, reversed the Board's decision. Miranda petitioned the superior court for writ of habeas corpus, and the superior court granted the petition, holding that the factual basis for the Governor's ruling was inadequate and unsupported. The Governor appealed from the superior court's order, and this court reversed. We concluded that some evidence supported the Governor's denial of parole. (In re Miranda (May 23, 2006, C048010) [nonpub. opn.].)
During the interim between the superior court's grant of the petition concerning the 2003 Board hearing and our reversal of the superior court's order, Miranda was released from prison on November 8, 2004. Since Miranda was out of prison in 2006, when we issued our opinion concerning his 2003 parole-suitability hearing, the superior court ordered that Miranda would remain free until the Board held a new parole-suitability hearing.
The Board held a new parole-suitability hearing on January 11, 2007. It determined that Miranda was not suitable for parole. (The Board's determination at this 2007 parole-suitability hearing ...