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Name: In re Butler
Case #: B253193
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 12/04/2014

The Governor did not improperly rely on new evidence from outside the administrative record when he reversed the Parole Board’s grant of parole. Butler pled guilty to two counts of first degree murder for shooting and killing Jones and McClendon in 1985. He was sentenced to 27 years to life. At his 2012 parole hearing, Butler said he murdered Jones and McClendon because he was “acting out years of suppressed anger at his abandonment by his mother” 20 years earlier. The Board granted Butler parole, finding that he had demonstrated that he was no longer a threat to society and “did an exceptional job with respect to insight” into his crime. The Governor reversed the Board’s decision, stating that Butler’s explanation was “incomprehensible.” The Governor also stated that he was concerned by “new information” the Board had not considered, which cast further doubt on Butler’s explanation. The Governor encouraged the Board to fully consider that new information at Butler’s next parole suitability hearing. Thereafter, Butler filed a habeas petition in the superior court challenging the Governor’s reversal. The superior court granted relief, concluding that the Governor had improperly relied on the new information. The People appealed. Held: Reversed. In making the decision to reverse a grant of parole, the Governor cannot rely on evidence that was not before the Board. (In re Copley (2011) 196 Cal.App.4th 427, 433.) Although the Governor did express that he was concerned with new information, his decision to reverse the Board was not based on it. Instead, the Governor relied on evidence that was before the Board—the brutality of the murders and his disbelief of Butler’s explanation—that led him to find that Butler was still dangerous. This finding was supported by some evidence. The Governor only noted the new information to guide the Board in future proceedings.

Constitutional provision that gives the Governor authority to overturn the Board’s decision to grant parole does not violate ex post facto principles. Butler committed his crimes before the constitutional provision was enacted. Butler argued that the provision increased his potential punishment and therefore violates ex post facto principles. The Court of Appeal disagreed, citing In re Rosenkrantz (2002) 29 Cal.4th 616, 639-640, which “already addressed this issue and held that the gubernatorial parole review procedure does not violate ex post facto principles.”