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[167 Cal.Rptr.3d 411] Steve M. Defilippis, San Jose, under appointment by the Supreme Court, for Petitioner Johnny Lira.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Susan Duncan Lee, Acting State Solicitor General, Donald E. de Nicola, Deputy State Solicitor General, Julie L. Garland and Jennifer A. Neill, Assistant Attorneys General, Anya M. Binsacca, Jessica N. Blonen, Phillip J. Lindsay and Brian C. Kinney, Deputy Attorneys General, for Respondent The People.
[317 P.3d 620] A life inmate is found suitable for parole and given a parole date by the Board of Parole Hearings (the Board). The Governor reverses the grant of parole, the inmate challenges the reversal by petition for writ of habeas corpus, and while the petition is pending the Board again finds the inmate suitable and sets another parole date. The Governor does not review the second decision, and the inmate is released from prison, subject to a maximum five-year parole term under the applicable statute. If the court subsequently grants relief on the inmate's habeas corpus petition and overturns the Governor's earlier reversal for want of supporting evidence, is the inmate entitled to credit against his parole [317 P.3d 621] term for the time he spent in prison between the erroneous reversal and his eventual release? We conclude he is not.
I. FACTUAL AND PROCEDURAL BACKGROUND
Because the circumstances of the underlying offense are not relevant to the issue before us, we summarize them only briefly. Lira was convicted of second degree murder for the 1980 shooting death of his estranged wife. He was sentenced in 1981 to an indeterminate term of 15 years to life [167 Cal.Rptr.3d 412] in prison, consecutive to a two-year firearm use enhancement, and was subject to a parole term not to exceed five years upon his release. (Pen. Code, former §§ 3000, subd. (b), 3001, subd. (b); Stats. 1978, ch. 582, §§ 1, 2, pp. 2003, 2004.)
In December 2005, the Board denied Lira parole for the ninth time, a denial Lira successfully challenged by filing a petition for writ of habeas corpus in superior court. The superior court, in an order affirmed on appeal, ordered a new parole hearing, which the Board conducted in November 2008. At the new hearing the Board found Lira suitable for parole, a decision then-Governor Schwarzenegger reversed in April 2009. Lira challenged the Governor's reversal by filing a second habeas corpus petition in superior court. While that petition was pending, at a regularly scheduled parole hearing on November 3, 2009, the Board again found Lira suitable for parole, a decision the Governor declined to review. Lira was paroled on April 8, 2010.
Lira then filed a supplemental habeas corpus petition, arguing that his release did not moot the pending petition challenging the Governor's reversal
of the Board's 2008 finding of suitability, and seeking credit against his parole term for all the time he spent in prison after the Board's deficient 2005 unsuitability finding. The superior court granted relief, finding the Board and the Governor had each acted unlawfully in denying Lira parole and ordering that he receive credit against his parole term for the period spanning the date on which a favorable 2005 parole decision by the Board would have been effective to the date of Lira's actual release from prison. The Attorney General, on behalf of respondent, appealed.
The Court of Appeal rejected Lira's argument that he was entitled to credit for the entire period he spent in prison following the Board's deficient 2005 suitability finding, but affirmed the superior court's conclusion that the Governor's reversal of the Board's 2008 parole grant was not supported by " some evidence" as required by law. (See In re Lawrence (2008) 44 Cal.4th 1181, 1220-1221, 82 Cal.Rptr.3d 169, 190 P.3d 535; In re Rosenkrantz (2002) 29 Cal.4th 616, 677, 128 Cal.Rptr.2d 104, 59 P.3d 174.) The court modified the order ...