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Name: In re Montgomery
Case #: B192544
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 11/07/2007
Subsequent History: 2/20/08 rev. granted: S159141

Habeas petition was properly granted where Governor reversed parole decision based solely on the nature of the offense without considering that petitioner was only an accomplice. The Governor appealed from an order granting a habeas petition filed by Montgomery and ordering him released from state prison. The superior court determined that the Governor’s reversal of the BOPH’s decision finding Montgomery suitable was based solely on the nature of the offense and was not supported by “some evidence.” The appellate court concluded that the Governor’s decision could not withstand “especially close scrutiny” because the denial rested solely on the gravity of the offense and the Governor viewed the nature of the crime without considering that Montgomery was not the shooter, but an accomplice. To hold otherwise would render the fact of the nature of the offense a permanent denial of parole.