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In Re Merlyn E. Maas

August 24, 2011

IN RE MERLYN E. MAAS, ON HABEAS CORPUS.


(Super. Ct. No. 09F03494)

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

In re Maas

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The Board of Parole Hearings (the Board) twice granted parole to respondent Merlyn E. Maas (Maas). Former Governor Arnold Schwarzenegger (the Governor) twice reversed those grants.*fn1

Maas successfully petitioned the trial court for a writ of habeas corpus. The trial court found the Governor's reversals were not supported by the applicable legal standard of "some evidence," and reinstated the Board's grant of parole.

In April 2010, we denied a writ of supersedeas request from the Secretary of the Department of Corrections and Rehabilitation on behalf of the Governor (the State) to stay the trial court's habeas order; this meant that Maas, who is in his mid-60's, was released from prison on parole.

The State now appeals the trial court's habeas order. (Pen. Code, § 1506.) The State contends that some evidence supports the Governor's parole reversals because Maas (1) participated in educational and vocational programs in limited fashion; and (2) lacked insight and minimized his responsibility for the offenses.*fn2 We shall affirm the trial court's order granting Maas's writ of habeas corpus.

We will proceed straight to our discussion. We will first set forth our standard of review and then interweave the pertinent facts as we discuss the parole factors at issue.

DISCUSSION

I. Standard of Review

California's governor may review any parole decision of the Board. (Cal. Const., art. V, § 8, subd. (b); In re Burdan (2008) 169 Cal.App.4th 18, 28-29 (Burdan).) A governor's determination of an inmate's suitability for parole is subject to the same legal standards as that of the Board. (Burdan, supra, at p. 29.)

"[Our] standard of review . . . is . . . 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 (Lawrence).) "[T]he relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is . . . an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude." (Id. at p. 1221.)

The deferential review of the some evidence standard, however, does not mean that parole denials are upheld as long as there is some evidence to support any of the factors cited for parole unsuitability; again, this some evidence standard zeroes in on the critical factor of whether the inmate poses a current risk of danger to society if released from prison. (Lawrence, supra, 44 Cal.4th at pp. 1210, 1212.) This is ...


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