Post-Hearing Decision Review and Motions

George Bakerjian, Staff Attorney

Decision Review

Statutory Authority “[A]ny decision of the parole panel finding

an inmate suitable for parole shall become final within 120 days of the date of the hearing. During that period, the board may review the panel’s decision”

– Penal Code §3041(b)

Decision ReviewRegulatory Authority “Proposed decisions made at hearings for prisoners serving

a sentence of life with the possibility of parole may be reviewed by the chief counsel or a designee.”

- California Code of Regulations, Title 15, §2041(h) Grants

Grants of parole shall be reviewed by the chief counsel or a designee.

Denials A random sample of parole denials, as determined by the Board,

shall be reviewed by the chief counsel or a designee. - California Code of Regulations, Title 15, §2041(h)

Decision Review – How Is It Invoked?

Inmate An inmate may invoke decision review by sending

correspondence to the Board expressly requesting decision review and including the reason for the request.

Must be requested before the proposed decision becomes final.

Board Grants

The Board conducts decision review on all grants of parole and reviews all term calculations.

Denials The Board conducts decision review on as many denials as

resources permit. The Board reviews all “Butler” term calculations (base and

adjusted base terms)

Decision Review – The Standard

The panel’s decision shall become final “unless the board finds that the panel made an error of law, or that the panel’s decision was based on an error of fact, or that new information should be presented to the board, any of which when corrected or considered by the board has a substantial likelihood of resulting in a substantially different decision upon a rehearing.”

– Penal Code §3041(b); California Code of Regulations, Title 15, §2042

Chief Counsel Review Timing Requirements

Within 110 days of the hearing, the chief counsel, or a designee, may: (i) affirm the proposed decision, (ii) order a new hearing, or (iii) modify the proposed decision without a new hearing.

- California Code of Regulations, Title 15, §2041(h)

Chief Counsel and En Banc Review

Adverse Modifications – En Banc Review No decision shall be modified without a new hearing if

the decision would be adverse to the prisoner's interest. In cases where the chief counsel recommends

modification where the decision is adverse to the prisoner’s interest, the matter shall be referred to the full board for en banc review.

No proposed decision shall be referred for a new hearing without a majority vote of the board following a public hearing.

- California Code of Regulations, Title 15, §2041(h)

Governor’s Review - Murder Cases

“No decision of the parole authority of this State with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon a conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision.”

“The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider.”

– California Constitution, Article 5, Section 8, subdivision (b)

Governor’s Review - Murder Cases

“During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority’s decision pursuant to subdivision (b) of section 8 of Article V of the Constitution, shall review materials provided by the parole authority.”

– Penal Code §3041.2(a)

“If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision.”

– Penal Code §3041.2(b)

Governor’s Request for Review

“Up to 90 days prior to a scheduled release date, the Governor may request review of any decision by a parole authority concerning the grant or denial of parole to any inmate in state prison.”

– Penal Code §3041.1

Post-Hearing Motions – Advancing a Hearing

There are two processes by which an inmate’s suitability hearing can be advanced after his/her initial hearing: Petition to Advance (PTA) – Initiated by the inmate Administrative Review (AR) – Initiated by the Board

Petition to Advance (PTA)

An inmate may request that the board exercise its discretion to advance a hearing following a denial of parole or stipulation (with a Marsy's law denial length) to an earlier date, by submitting a written request to the board.

– Penal Code §3041.5(d)(1)

Standard “A change in circumstances or new information that

establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate.”

– Penal Code §3041.5(d)(1)

Petition to Advance (PTA)

Process Upon request of a PTA, the Board will review the petition

to ensure that it has jurisdiction to consider the petition. If the Board has jurisdiction, then all victims will be

notified of the petition and be given 30 days to offer their input.

Petition is then sent for substantive review by a hearing officer.

Limitation The Board will only consider a subsequent PTA 3 years

after the previous PTA was decided on the merits. – Penal Code

§3041.5(d)(3)

Petition to Advance (PTA)

Sole Discretion The Board has sole discretion to approve or deny a

petition to advance a hearing date Possible Outcomes

Approved If the petition is approved, the inmate is either placed on

the next available hearing calendar or the inmate’s denial length will be reduced (to another Marsy’s law denial length)

Denied If the petition is denied, the inmate’s current denial length

remains in tact and the inmate will be notified of the decision.

PTA – BPH Form 1045 - A

http://www.cdcr.ca.gov/BOPH/docs/Forms/BPH_1045-A_Part_1.pdf

Administrative Review (AD)

The Board typically conducts administrative review on select 3-year denials.

Timing Each month, the Board’s Special Processing Unit (SPU)

screens-in cases for administrative review from the same month of the previous year (September 2015 denials will be screened-in for AR in September 2016)

Administrative Review (AR)

Screening Criteria Hearing will not be advanced if:

Inmate has filed a PTA since his/her last hearing An intervening hearing (court ordered or via decision

review/en banc) Violent 115 since last hearing Inmate has a moderate-to-high or a high risk assessment

score Presence of new negative of confidential information

Administrative Review (AR)

Standard Advancing a hearing date requires a reasonable

likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate.”

Administrative Review - Possible Outcomes

Approved If the hearing advancement is approved, the Board

schedules the inmate’s hearing 18 months from his/her last hearing date (6 months after screen-in date).

Denied If the hearing advancement is denied, the inmate’s

current denial length remains in tact

September 14, 2015

• Inmate Moseley receives 3 year denial

September 2016

• Inmate Moseley’s case is screened by EAU

March 2017

• Inmate Moseley receives his advanced suitability hearing

Contact InformationGeorge BakerjianStaff AttorneyBoard of Parole Hearings916.324.5955George.Bakerjian@cdcr.ca.gov

Legal Hotline/Legal Officer of the Day916.212.0554