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Name: In re Gomez
Case #: G043001
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/15/2010

A decision by the Governor to reverse the board’s finding of parole suitability must be supported by facts in the record. The remedy for an unsupported finding by the Governor is reinstatement of the board’s decision. Petitioner was convicted of second degree murder in 1990 and sentenced to 15 years to life, making him presumptively eligible for parole some ten years ago. In 2008 and, again in 2009, the Board of Parole Hearings found petitioner suitable for parole. But each time the Governor reversed the findings due to the “especially atrocious” nature of the murder and petitioner’s failure to accept responsibility for the offense, as evidenced by the various renditions of the offense he had given over the years. The appellate court found that the record did not support the Governor’s findings, and, as a result, petitioner was denied due process. In determining an applicant’s suitability for parole, the board and Governor must consider all relevant information, focusing on whether the applicant remains a danger to society. The aggravated nature of the offense alone generally does not provide sufficient evidence of current dangerousness. Although the nature of the commitment offense is to be considered, it must be done so along with other factors, such as prison adjustment, parole plans, etc. Here, the court observed that although the killing was atrocious, as are all second degree murders, it was not “especially” atrocious. Further, the record did not support the Governor’s finding that petitioner failed to accept responsibility. Petitioner’s changed version of the events was consistent with his newly-developed insight gained through the prison’s programs. Because the record in this case amply demonstrated petitioner’s rehabilitation, insight, and remorse, and was devoid of any evidence supporting a finding that he continued to pose a threat to public safety, the remedy for the violation of due process resulting from the Governor’s decision to overrule the grant of parole by the Board of Parole Hearings is to vacate the Governor’s decision and to reinstate that of the board. A person subject to lifetime parole is not entitled to credit for time unlawfully incarcerated. The court rejected appellant’s claim that he was entitled to credit against his parole period for the time he was unlawfully incarcerated as a result of the Governor’s decision. Penal Code section 3000.1 provides that a person convicted of a second degree murder is subject to lifetime parole and becomes eligible for discharge from parole “when [such a] person … has been released on parole from the state prison, and has been on parole continuously for … five years.” Applying rules of statutory construction, the court found that the Legislature made it clear that five-year parole discharge eligibility requirement is expressly limited to the period of time after the parolee “has been released on parole” and requires that the parolee serve five continuous years on parole “since [the parolee’s] release from confinement.” ( In re Chaudhary (2009) 172 Cal.App.4th 32, 37.)