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In a ruling that seems to thumb its nose at the executive branch, Los Angeles’ Second District Court of Appeal on Monday overturned a parole denial by Gray Davis only four months after the state’s highest court gave the governor great leeway on parole issues. The court, in an eight-page ruling, held that Davis’ denial of parole to convicted murderer Christopher Capistran wasn’t supported by “some evidence,” as required by the California Supreme Court’s Dec. 16 ruling in In re Rosenkrantz, 29 Cal.4th 616. Davis won a major victory with Rosenkrantz, which set a very high bar for any court to overturn his parole decisions. The Second District also held that Davis had failed to consider the same individual factors that the state’s Board of Prison Terms reviews as a matter of law. The board recommended parole for Capistran. One of Capistran’s lawyers, Keith Wattley, a staff attorney in San Quentin’s Prison Law Office, said the ruling sends a blunt message to Davis. “The courts are not just going to automatically defer to anything the governor says,” Wattley said, “and what this case clearly demonstrates is that the governor has no interest in fairly considering a prisoner’s suitability for parole.” The governor’s office referred calls on the case to Deputy Press Secretary Byron Tucker. Tucker did not return a call by press time. Capistran was convicted of second-degree murder and sentenced to 15 years to life in prison for starting a gang fight that ended up with the stabbing death of Joey Padilla in Santa Maria in 1984. In 1999, the Board of Prison Terms recommended parole, saying Capistran, who was 17 at the time of the murder, had turned himself around in prison and deserved a second chance. Four months later, Davis reversed the board’s decision, saying Capistran still represented a threat to society. Santa Barbara County Superior Court Judge Rick Brown overturned Davis in May 2002, saying the governor’s decision was not supported by some evidence. In affirming, the appeal court Monday said that Davis also had failed to consider individual factors, such as Capistran’s good behavior behind bars, his expressed remorse and evidence that he has realistic plans for his life following release. Davis, the justices said, inappropriately focused primarily on the initial crime and incidents of violence during Capistran’s earliest days in prison, including an escape plot in which Capistran was shown to have no involvement. “Because the governor’s decision purports to rely on facts regarding Capistran’s institutional behavior that are not supported by some evidence,” Justice Steven Perren wrote, “the decision cannot be sustained on the ground that the other aspects of the governor’s decision are supported by some evidence.” Justices Arthur Gilbert and Paul Coffee concurred. Interestingly, Perren, a Democrat, was one of Democratic Gov. Davis’ first appointees to the appellate courts. The ruling reversed the trial court’s decision ordering Capistran’s release, instead ordering that the parole grant be reinstated, and then be reviewed by Davis again, consistent with the requirements of Rosenkrantz. San Diego Deputy Attorney General Heather Bushman said that part of the ruling was significant because it resolved an issue left unanswered in Rosenkrantz. “The superior court had essentially determined Mr. Capistran was suitable and ordered his release,” she said Monday, “and this case, which is the first published one on this issue, has determined that it is not appropriate for courts to determine suitability and order an inmate to be released because that’s an executive branch function.” In its ruling, the court also seemed sympathetic to Capistran’s claims that Davis has a blanket no-parole policy, in violation of state statutes. But the argument, they said, was decided in Davis’ favor in Rosenkrantz, “and we are bound by that decision.” Wattley, of the Prison Law Office, said evidence of a no-parole policy continues to mount. To date, he said, Davis has approved only three parole recommendations out of about 230 murder cases.

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