The opinion of the court was delivered by: Huffman, J.
CERTIFIED FOR PUBLICATION
Petition for writ of habeas corpus. Petition dismissed.
From 1982 until October 7, 2011, John Batie was incarcerated for his commitment offense, the 1981 second degree murder of James Simmons. Batie was granted parole in 2011 by the Board of Parole Hearings (Board), and Governor Edmund G. Brown, Jr. took no contrary action, allowing the Board's 2011 grant of parole to become effective, while this habeas proceeding was pending. (Pen. Code, § 3040 et seq.; all further statutory references are to the Penal Code unless noted.) In his petition and supplemental petition, Batie continues to challenge a portion of his previous confinement in prison as unlawful, based upon an allegedly wrongful 2010 reversal by the previous Governor (Arnold Schwarzenegger) of an earlier grant of parole by the Board.
In response to Batie's petition, we issued an order to show cause, the People filed a return, and Batie filed a traverse. The facts are undisputed about the renewed grant of parole and the current Governor's lack of action to reverse it, as shown in the exhibits attached to Batie's supplemental petition and in the People's return. We required and considered supplemental briefing about the mootness, or lack thereof, of any or all of the issues presented.
Batie contends that the matter is not entirely moot, because issues of law remain about whether he is entitled to credit against his parole period for the 366 days that elapsed between the allegedly wrongful Governor's reversal in 2010, and his eventual release date. He continues to argue his request for such credit is premised on our examination of the record, to make his requested determination there was not "some evidence" to support the 2010 Governor's finding that Batie posed an unreasonable risk of current dangerousness if released into the community. (In re Shaputis (2011) 53 Cal.4th 192, 220-221 (Shaputis II).) If the Governor's reversal is deemed unjustified, Batie claims he has already experienced a denial of due process, in the form of unlawful parole custody. Both as a procedural matter and on the merits, the People disagree that any "wrongful confinement" occurred or that any credit issues remain for resolution.
On this record, we decline to engage in an academic exercise of whether "some evidence" supported the 2010 Governor's finding, and instead conclude that Batie's 2011 release has mooted all issues in the petition that concern release on parole. However, for purposes of analysis of the arguments regarding any available, appropriate credits toward the parole period, we will assume, without deciding, that the 2010 Governor's finding was unsupported by the evidence, and then determine as a matter of law whether any judicial remedy can be created to control the Board's administrative and discretionary processes in setting the term and conditions of parole.
"The phrase 'in accordance with due process of law' is somewhat ambiguous and susceptible of various interpretations." (In re Prather (2010) 50 Cal.4th 238, 252.) Batie cannot justifiably argue his period of continued custody, pending the Governor's exercise of his constitutional power to conduct an independent, de novo review of an inmate's suitability for parole, was such a due process violation. (Id. at p. 257, fn. 12.) As we will show, based on well-established principles regarding separation of powers between the executive, legislative and judicial branches, and the established scope of due process review that is appropriate, Batie has received all of the relief to which he is entitled, and this does not include any judicially determined award of additional credits. (Shaputis II, supra, 53 Cal.4th 192, 220-221; In re Prather, supra, at p. 259 (conc. opn. of Moreno, J.); In re Bush (2008) 161 Cal.App.4th 133, 139.) We therefore dismiss the petition.
A. Introduction; Governing Law
On February 13, 1981, Batie shot and killed Simmons. A jury convicted Batie of second degree murder, and the conviction was affirmed. He was sentenced to 15 years to life in prison, with a two-year sentence for personal use of a firearm. Batie was eligible to be considered for a five-year period of parole, pursuant to then-effective section 3000, subdivision (b), providing that for "any inmate sentenced under Section 1168, the period of parole shall not exceed five years in the case of an inmate imprisoned under a life sentence . . . unless . . . the [former Board/parole authority] for good cause waives parole and discharges the inmate from custody of the department. . . ."
However, as explained in the legislative history of section 3000, that subdivision (b) was amended in 1982, "to exclude inmates under life sentence for first or second degree murder from the three-year or five-year period of parole under this section."*fn1
As applied to Batie, the version of section 3000, subdivision (a), effective in 1981 contained the basic legislative declaration "that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship. It is in the interest of public safety for the state to provide for the effective supervision of and surveillance of parolees . . . . A sentence pursuant to Section 1168 or 1170 shall include a period of parole, unless waived, as provided in this section . . . ." (Stats. 1979, ch. 255, § 17, pp. 557-558.) This principle is also restated in the current version of section 3000, subdivision (a)(1).
As explained in In re Prather, supra, 50 Cal.4th 238, "the statutes and governing regulations establish that the decision to grant or deny parole is committed entirely to the judgment and discretion of the Board, with a constitutionally based veto power over the Board's decision vested in the Governor." (Id. at p. 251, Cal. Const., art. V, § 8, subd. (b).) Due process requirements place limits upon the broad discretionary authority of the parole authorities, which include the Board and its related agencies. (In re Rosenkrantz (2002) 29 Cal.4th 616, 658-660.) Within those limits, the parole authorities may impose conditions upon the grant of parole and determine when and whether discharge from parole is appropriate. (49 Cal. Jur.3d, Pen. & Correctional Institutions, § 299, p. 387; § 304, p. 395.)
B. Board's Parole Grants; Governor's Reversals through 2010
Batie first became eligible for parole in 1990. At five hearings between 2002 and 2010, the Board granted Batie parole, but all those decisions were reversed by the Governor. Batie has filed several earlier appeals or habeas petitions in this court, which have not been successful.*fn2 Most recently, May 3, 2011, the Board granted Batie parole, to become effective on September 30, 2011, if not reversed by the Governor.
C. Current and Supplemental Habeas Petitions; Order for Supplemental Briefing
On May 26, 2011, Batie filed an original petition in pro per, counsel was appointed, and the supplemental petition with supporting exhibits was filed. We issued an order to show cause June 15, 2011. Since the Governor took no action, and Batie was released on parole October 7, 2011, the People's return filed on October 14, 2011 contended that all issues in the petition had been mooted, as shown by the exhibits concerning release in the return.
In his traverse and in the supplemental petition, Batie contended that the People had not effectively shown the 2010 Governor's reversal was proper, and therefore, on due process and statutory grounds, Batie should be "entitled to a reduction in his parole period equal to the number of days he spent unlawfully incarcerated pursuant to [the Governor's] errant reversal of the 2010 parole grant."
Regarding the merits of the reversal, Batie continues to contend the Governor's 2010 determination was made pursuant to a bias against parole for life-sentenced prisoners and an arbitrary disregard of the parole release provisions of section 3040 et seq. He argues this reversal was a violation of due process and ex post facto principles. (In re Rosenkrantz, supra, 29 Cal.4th 616, 636-640; In re Lawrence (2008) 44 Cal.4th 1181.)
Consequently, on the credits issue, Batie contends he has adequately shown he has been wrongfully confined since the date of the "unsupported" decision by the then-Governor on October 6, 2010, and he is entitled to a remedy in the form of credits that we should order to be granted by the parole authorities, entitling him to "discharge based upon when he should rightfully have been paroled." Batie also submitted supplemental authority, a citation to In re Lira (Dec. 6, 2011, H036162). Rehearing was granted, and a new opinion has been filed (In re Lira (June 29, 2012, H036162) __ Cal.App.4th __ [2012 Cal.App. LEXIS 768]), which we will discuss in part III.B, post.
In response to these developments, this court required the parties to submit supplemental briefing addressing whether the principles discussed by the court in In re Lira (Dec. 6, 2111, H036162), were correctly applied to allow a grant of credits against a parole period, and to discuss the implications of those principles in this case. We requested a discussion of In re Bush, supra, 161 Cal.App.4th 133, 139 and other relevant authorities, and sought the views of the parties on whether this court must now examine the propriety of the Governor's 2010 reversal of the Board's grant of parole, despite any mootness issues. We further required counsel for the People to comment on the propriety of that denial on the current record presented.
The parties complied with the order by submitting supplemental briefing, appropriately addressing the issues raised in In re Lira, supra (Dec. 6, 2011, H036162), but without citing it as authority. (Cal. Rules of Court, rule 8.115.) Before oral argument was held, the new opinion in Lira ...