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Name: In re Kler
Case #: A128153
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 10/05/2010

California Rules of Court, rule 8.385(c)(2), which requires that a petition for writ of habeas corpus challenging the denial of parole be denied if it is not first adjudicated in the trial court rendering the underlying judgment, is inconsistent with the California Constitution. In 2009, the appellate court granted petitioner’s petition for writ of habeas corpus that challenged a 2007 parole denial. Following a new hearing, the Board of Parole Hearings found petitioner suitable for parole; but in 2010, the Governor reversed. Petitioner then filed the present petition in the appellate court challenging the action by the Governor. The Governor argued that California Rules of Court, rule 8.385(c)(2), prohibited the appellate court from entertaining the matter in the first instance. The appellate court disagreed. California Rules of Court have the force of a statute to the extent they are not inconsistent with constitutional provisions. Rule 8.385 states the Court of Appeal must deny a petition challenging a denial of parole that is not first brought in the trial court. Rule 1.5 (b)(1) defines must as mandatory, whereas rule 1.5 (b)(5) defines should as expressing a preference. Because the Constitution vests all courts in California with original jurisdiction, the rule is contrary to constitutional provisions. Under the Constitution, while a Court of Appeal may have original jurisdiction in a habeas proceeding, it has discretion to deny a petition not first presented to the trial court. “Among the three levels of state courts, a habeas corpus petition challenging a decision of the parole board should be filed in the superior court, which should entertain in the first instance the petition,” subject to a showing that any extraordinary reason exists for action by a different court. (In re Roberts (2005) 36 Cal.4th 575, 593; In re Hillery (1962) 202 Cal.App.2d 293, 294.) This case presented such an extraordinary reason. Since the issues presented flowed from the appellate court’s previous decision, no court would be better suited to hear the matter.