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Name: In re Masoner
Case #: B205410
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 04/02/2009

Following a finding by the superior court on a habeas corpus petition that the Board of Parole’s decision denying parole was not supported by some evidence, the remedy is not an order by the court for petitioner’s release on parole, but, instead, for the court to grant petitioner’s petition for writ of habeas corpus and direct the board to conduct a new parole suitability hearing to consider any new evidence. In 1984, petitioner was convicted of second degree murder resulting from a drunk driving incident and sentenced to state prison for 15 years to life. In 2005, the Board of Parole Hearings, following several previous findings of parole unsuitability, again found petitioner unsuitable. Petitioner then filed a petition for writ of habeas corpus with the California Supreme Court which issued an order to show cause, returnable before the superior court. The superior court granted the habeas petition and ordered petitioner released on parole. The appellate court reversed the order releasing petitioner on parole, finding that this action impermissibly violated the separation of powers by infringing on the board’s inherent discretion to decide parole matters and set parole dates, as well as the Governor’s power to review the board’s decisions. Following the court’s finding that parole denial was not based on any evidence, the board must be provided the opportunity to consider any new evidence that arose following the denial that would impact on the issue of parole suitability.