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Name: In re Lira
Case #: H036162
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 06/29/2012
Subsequent History: Review granted 10/17/12: S204582

A life prisoner who has remained incarcerated after the Governor erroneously vetoed a release on parole after a grant by the Board of Parole Hearings is entitled to credit for that time to reduce the term of parole. Lira successfully challenged the Board’s December 2005 denial of parole in habeas proceedings, claiming that the decision was not supported by any evidence, and a new parole hearing was ordered. In 2008, Lira was found suitable for parole by the Board but that decision was vetoed by then Governor Schwarzenegger in April 2009. At the next scheduled hearing in November 2009, the Board again found him suitable and Governor Brown declined to review the decision. Lira was released on parole in April 2010. He filed a habeas petition claiming that Governor Schwarzenegger’s veto was erroneous and sought an immediate discharge from parole. Lira claimed that because his incarceration after 2005 was unlawful, he was entitled to custody credit against his parole term for this time. The trial court agreed. The Court of Appeal affirmed in part. Lira’s incarceration after the Board’s erroneous denial of parole in 2005 until he was granted parole in 2008 was clearly lawful and he was not entitled to credit for this time. However, he was entitled to credit for time served after November 2008 because a prisoner whose incarceration is extended by an unlawful veto is entitled to credit against his parole term. The Governor’s veto was not supported by even a modicum of evidence in violation of Lira’s right of due process. Lira’s conduct credit claim was not properly presented and, even if it was, he was not entitled to conduct credit against his parole term based on any statute or regulation. [Editor’s note: This is an opinion following rehearing of In re Lira (2011) 201 Cal.App.4th 677.]