This is a really troubling case. In in re Lowe, the 6th District reverses the trial court's order granting a habeas petition. The trial court granted the petition to reverse Governor Gray Davis' reversal of the Board of Prison Terms's decision to grant parole. Petitioner has already served 20 years out of his 15-to-life sentence for a second degree murder.
The Sixth District holds that a decision to deny parole can be made based on aggravated facts re: the underlying crime, even if those facts are not reflected in the degree of convicted crime. For instance, here, Davis considered evidence of premediation and planning, even though the defendant pled guilty only to 2-nd degree murder. More importantly, what this means is that any indeterminate life sentence with a possibility of parole can be effectively converted into a life sentence without possibility of parole. Under the standard formulated by the 6th District, subsequent rehabilitation, no matter how successfull, is irrelevant if either the Board or the Governor decide that the facts of the crime alone justify incarcerating the prisoner for a life term.
"Here, unlike the situation in Smith, it is readily apparent that the Governor would have found Lowe “unsuitable for parole solely because of the gravity of the commitment offense . . . .” (Smith, supra, 114 Cal.App.4th at p. 373.) As discussed above, the particular circumstances of the commitment offense can, by themselves, provide the “some evidence” that is necessary to uphold the Governor’s decision. (Rosenkrantz, supra, 29 Cal.4th at pp. 677-679.) For the reasons stated below, we conclude there is some evidence in the record that supports the Governor’s conclusion that the gravity of Lowe’s commitment offense and the facts and circumstances surrounding that crime warrant a finding that Lowe is unsuitable for parole because he poses an unreasonable danger to society."
If that is what the Legislature intended, it would have simply made all sentences for murder, regardless of degree, LWOP.
The conversion of indeterminate sentences into de facto life sentences is made more likely by the fact that the final decisionmaking authority on parole is vested in the Governor. What is the political upside for the Governor in granting parole? Parolees themselves are not voters and their families (if any) are not a big enough voter block. On the other side, the political downside is tremendous. No Governor will want to release the next Willie Horton or Richard Allen Davis and have that decision put up on the billboards during the next re-election campaign.
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