In re Montgomery 11/7/07 CA2/6

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B192544

Case Date: 02/20/2008

Preview:Filed 11/7/07

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

In re MICHAEL MONTGOMERY, on Habeas Corpus.

2d Civil No. B192544 (Super. Ct. No. CR14384) (San Luis Obispo County)

The Governor appeals from a superior court order granting a petition for writ of habeas corpus filed by Michael Montgomery and ordering that he be released.1 The superior court determined that Governor Arnold Schwarzenegger's reversal of the Board of Parole Hearings' (Board) decision finding Montgomery suitable for parole was based solely on the nature of the commitment offense and was not supported by "some evidence." The Attorney General urges us to reverse the superior court's decision, arguing that the nature of the commitment offense provides some evidence supporting the Governor's reversal of the Board's decision. Understanding that the standard of review of the Governor's decision is whether there is "some evidence" (In re Rosenkrantz (2002) 29 Cal.4th 616, 626, 664667) to support his denial of parole, we confront the further question of whether the Governor's decision can withstand "especially close scrutiny" (In re Scott (2005) 133 Cal.App.4th 573, 595) inasmuch as the denial rests solely on the gravity of the offense.
1

Montgomery was released from custody on or about August 1, 2006, following our Supreme Court's denial of the Governor's petition for writ of supersedeas and vacating a temporary stay. Montgomery remains at liberty on parole.

We conclude that it does not, and that to hold otherwise could render the immutable fact of the nature of the commitment offense a permanent denial of parole. Accordingly, we affirm the order of the trial court. FACTUAL AND PROCEDURAL HISTORY 1. The Commitment Offense

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