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Name: In re Cooper
Case #: A116437
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 07/27/2007
Subsequent History: 10/24/07: Revw. Grant & Hold S155130

In considering an indeterminate life inmate for parole the Parole Board first determines the inmate’s suitability and if it finds him suitable, sets a parole release date. (Pen. Code, sec. 3041.5.) The Governor may review the Board’s parole decision but can consider only the same factors that may be considered by the parole authority, although he may weigh them differently and draw contrary conclusions. (In re Rosenkrantz (2002) 29 Cal.4th 616.)

When reviewing the Governor’s decision, the court considers whether some evidence indicates a parolee’s release unreasonably endangers pubic safety – not whether some evidence supports the Governor’s reasons. (In re Lee (2006) 143 Cal.App.4th 1400.) The Board found Cooper suitable for parole but the Governor reversed the decision on the basis of the crime committed. On review, the court found that the factors considered by the Governor did not establish that the murder was heinous or callous. It also found that the record established that Cooper was not a risk to public safety. Because there was nothing in the record considered by the Board or the Governor to support a decision other than that of the Board, it would be an idle act to remand for further consideration. Accordingly, the habeas petition was granted and the Board was ordered to release Cooper.