In re Rosenkrantz
| Decision Date | 18 January 2002 |
| Docket Number | No. B151016.,B151016. |
| Citation | 116 Cal.Rptr.2d 69,95 Cal.App.4th 358 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re Robert ROSENKRANTZ, on Habeas Corpus. |
Rowan K. Klein and Donald Specter, Prison Law Office, San Quentin, for Petitioner.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, and Robert D. Wilson, Deputy Attorney General, for Respondent.
Robert Rosenkrantz was convicted of murder and sentenced to prison for an indeterminate term of 15 years to life, plus 2 years for his use of a gun. The second time the Board of Prison Terms considered his suitability for parole, the hearing panel found he was suitable and fixed his parole date. That decision was reversed by the Board's Decision Review Unit, and a series of parole hearings held over a period of several years resulted in one denial after another. Ultimately, Rosenkrantz filed a petition for a writ of habeas corpus. Hearings were held in the superior court, and findings were made that there was no evidence to support the Board's decision. We affirmed, another hearing was held, and the matter was ultimately sent to the Governor. The Governor reversed the Board's decision. Rosenkrantz then amended his habeas petition, claiming there was no evidence to support the Governor's decision and that the Governor's decision was a product of the Governor's "no parole" policy, not an individualized determination of Rosenkrantz's suitability for parole. More hearings were held, and the amended petition was granted. The Governor appeals, contending the superior court had no jurisdiction to review his decision but that, if there is to be some judicial review, it must be based entirely on the Governor's statement of decision.
We conclude that Rosenkrantz's liberty interest in his statutory right to be considered for parole conferred jurisdiction on the superior court to review the Governor's decision and the underlying record for some evidence in support of the Governor's decision and for the due process violations asserted by Rosenkrantz. We conclude also that the Governor's review of the Board's parole decision had to be based on the evidence that was before the Board and on the same factors the Board was required to consider. We hold that our decision on the second of three prior appeals—where we found that there was not any evidence to support the Board's unsuitability finding—is the law of this case and binding on the superior court and on this appeal. We affirm the trial court's order.
In 1986, Robert Rosenkrantz was convicted of second degree murder, with a gun use allegation found true. He was sentenced to state prison for a term of 15 years to life, plus 2 years for his use of a gun. We affirmed the judgment. {People v. Rosenkrantz (1988) 198 Cal.App.3d 1187, 244 Cal.Rptr. 403 [Rosenkrantz I]); see also In re Rosenkrantz (2000) 80 Cal. App.4th 409, 95 Cal.Rptr.2d 279 [Rosenkrantz II]; Davis v. Superior Court (Rosenkrantz) (Feb. 22, 2001, No. B146421 [nonpub. opn.] [Rosenkrantz III].].) Read together, Rosenkrantz I, Rosenkrantz II, and Rosenkrantz III provide the details of the crime, Rosenkrantz's conduct while incarcerated, and Rosenkrantz's efforts to gain parole between 1996 and September 2000. In the following paragraphs, we summarize those facts and then describe the subsequent events leading to this appeal.
In 1994, the Board of Prison Terms set Rosenkrantz's minimum parole eligibility date as January 23, 1996. (Pen.Code, §§ 3040, 3041.)1 At a parole suitability hearing held in June 1996, the Board's hearing panel found Rosenkrantz suitable for parole and recommended a release date, but the Board's Decision Review Unit disapproved that recommendation and no parole date was set. At hearings held in December 1996, August 1997, and August 1998, the Board found Rosenkrantz was not suitable for parole. (Rosenkrantz II, 80 Cal.App.4th at pp. 413-419, 95 Cal. Rptr.2d 279.)
In 1998, Rosenkrantz filed a petition for a writ of habeas corpus in which he sought review of several of the parole suitability decisions. In April 1999, the superior court (Hon. Kathryne Ann Stoltz) granted Rosenkrantz's petition and directed the Board to set a parole date commensurate with Rosenkrantz's conviction of second degree murder—"`[u]nless there [were] changed circumstances or new information . . . that was not previously presented to the Board.'" (Rosenkrantz II, 80 Cal. App.4th at p. 421, 95 Cal.Rptr.2d 279.) The Board appealed and requested a stay, which we denied, and the Board held a new suitability hearing on September 9, 1999. At that hearing, the panel found Rosenkrantz unsuitable for parole—but granted a parole date in order to comply with the trial court's order. In November 1999, the Governor ( that the suitability finding was "`based solely'" on an order that was then pending on appeal) "`invoked his authority to reverse the Board's decision to grant parole.'" (Id, at pp. 421-422, 95 Cal.Rptr.2d 279; see also Cal. Const., art. V, § 8; § 3041.2.)
On the Board's appeal (and consolidated petition for a writ of mandate), we held (in April 2000) that "the September 9, 1999 finding of unsuitability is unsupported by any evidence and that the [hearing] panel's decision [could not] stand." (Rosenkrantz II, 80 Cal.App.4th at p. 427, 95 Cal.Rptr.2d 279.) We affirmed, and ordered the Board "to schedule and commence a new suitability hearing within 30 days of the date [our] opinion [was] filed." (Rosenkrantz II, 80 Cal.App.4th at p. 429, 95 Cal.Rptr.2d 279.) At the Board's request, we extended the time for compliance, and a new suitability hearing was held on June 30, 2000. No new evidence was presented, only new arguments. At the conclusion of the hearing, the hearing panel announced its finding that Rosenkrantz was "suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison." The hearing panel found that Rosenkrantz had committed his crime as the result of "significant stress" in his life, that he showed remorse and had accepted responsibility for his crime, and that his most recent psychological report demonstrated that he was "a very low risk for future violence" and "clearly not a criminally oriented individual."
In September 2000, the superior court ordered Rosenkrantz's immediate release on parole. Anticipating the Board's application to us for a stay, the superior court ordered that, "[i]f a stay of the order granting [Rosenkrantz's] immediate release on parole should be granted by another court," some technical issues were to be resolved and the Board was to complete its decision review process and transfer the case to the Governor within 10 working days after the issuance of the stay. As anticipated, we stayed the order for Rosenkrantz's immediate release. By the end of September, the Board complied with the superior court's orders and transferred the case to the Governor.
On October 28, 2000, the Governor reversed the Board's June 30 finding of suitability. (Cal. Const., art. V, § 8(b); § 3041.2.) In his 12 page decision, the Governor summarized the facts of the crime and Rosenkrantz's fugitive status during the 24 days following the murder. The Governor concluded that Rosenkrantz had "brutally murdered his victim," that his "crime demonstrates his dangerous potential for violence," and that his "conduct subsequent to the crime also demonstrates his dangerous potential for violence." The Governor said he was "not convinced that Mr. Rosenkrantz committed this murder in the heat of passion or under stress significant enough to offset the serious nature of this crime," and that although Mr. Rosenkrantz now professes remorse, he had "never fully taken responsibility for his crime." With regard to Rosenkrantz's years in prison, the Governor had this to say: "Although Mr. Rosenkrantz has been discipline free and continued his education while in prison, the State of California expects this of all prisoners." The Governor advised Rosenkrantz to "be grateful that he was not convicted of first degree murder." In short, it was the Governor's "considered judgment that the gravity of Mr. Rosenkrantz' offense and his repeated attempts to minimize the culpability evidence [made Rosenkrantz] a continued threat to the public requiring that he remain incarcerated."
In November 2000, Rosenkrantz filed an amended petition for a writ of habeas corpus in which he challenged the Governor's decision to reverse the Board's decision. In response, the Governor filed a peremptory challenge, claiming that Judge Stoltz was biased against him. (Code Civ. Proc., § 170.6.) Judge Stoltz struck the challenge as untimely. The Governor appealed. We reversed and ordered the superior court to transfer the cause to another judge. (Rosenkrantz III, Supra, B146421.)
On remand, the superior court (Hon. Paul Gutman) issued an order to show cause and set a briefing schedule. In April 2001, the Governor filed his return to the amended petition. Rosenkrantz filed his traverse in May. Evidentiary hearings were held in May and June, after which the superior court granted the petition and ordered Rosenkrantz "released from custody on parole forthwith." Among other things, the superior court found that habeas corpus was "a proper remedy to test the propriety of the review by the Governor," that "due process requires that there be some evidence to support a reversal of parole by the Governor," that the "materials reviewed by the Governor" included "no evidence supporting a denial of parole" and that, therefore, Rosenkrantz's "right to due process was violated when the Governor reversed the decision of the [Board] granting parole."
As an alternative basis for its order, the superior court also found that Rosenkrantz "was denied an individualized determination of his...
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