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Name: Ochoa v. Superior Court (Santa Clara County)
Case #: H036970
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 10/13/2011

In a parole proceeding, the warden may decline to disclose the identity of a prison informant against the inmate if there is a valid state interest in keeping the informant’s identity confidential. Glasgow was convicted of first degree murder in 1980 and sentenced to state prison for thirty years to life. In 2010, the Board of Parole Hearings (Board) found him suitable for parole but the Governor revsered the decision, based, in part, on confidential information that Glasgow sold his prescribed pain medication to other inmates. Glasgow challenged the decision in a writ action and the superior court ordered disclosure of the confidential information or reconsideration of parole without the information. The appellate court issued a peremptory writ vacating the order. An inmate seeking parole does not have the same minimum due process rights as the parolee in a Morrissey hearing (Morrissey v. Brewer (1972) 408 U.S. 471.) Instead, the rights of an inmate seeking parole are considered on a case by case basis, with the state’s interests weighed against those of the inmates. For security and safety, the warden may refuse to disclose confidential information (Evid. Code, sec. 1040). If a claim of privilege is made, the court may require an in camera hearing to determine if the information is privileged and if it is, it may not be disclosed. Here, the superior court, in an in camera hearing, determined that the confidential documents were relevant and reliable, allowing the warden to exert non disclosure under section 1040. However, the appellate court concluded that an in camera hearing with the warden must now be held to determine how much of the confidential information could be disclosed without disclosing the informant’s identity, such that Glasgow’s rights to a fair parole determination can be balanced with the state’s right of nondisclosure.