In Re Andrade

*809 Opinion

In this case we hold that the Board of Prison Terms (Board) 1 misconstrued section 2402 of title 15 of the former California Administrative Code, now California Code of Regulations, by requiring an inmate to have parole plans in both California and Mexico. The prisoner is serving a life sentence for murder and has a hold placed on him so he can be deported to his native country of Mexico. At the time of the commitment offense, the prisoner was in the United States illegally and remains an illegal alien. Despite the Board’s erroneous interpretation of section 2402, we affirm the Board’s decision to deny parole solely on the basis of the commitment offense.

Petitioner Liber R. Andrade was convicted in 1982 of second degree murder and aggravated assault and was sentenced to a term of 17 years to life. His minimum eligible parole release date was January 30, 1991. Because Andrade is an illegal alien from Mexico, the Immigration and Naturalization Service (INS) 2 placed a “hold" on him, indicating its intent to deport him to Mexico. At his first parole hearing, on March 22, 1990, he was found to be suitable for parole, and the Board set a June 1995 release date. However,…

I concur fully in the conclusion that petitioner’s failure to develop viable parole plans in California, as well as in Mexico, cannot under the circumstances described in the majority opinion properly be regarded as a factor showing him to be unsuitable for parole. However, I disagree strongly with the conclusion that the finding of the Board of Prison Terms, now the Board of Parole Hearings (the Board), that petitioner is unsuitable for parole, can be sustained based solely on the circumstances of petitioner’s commitment offense. In my view, there is no evidence in this record tending rationally to show that petitioner “will pose an unreasonable risk of danger to society if released from prison” (Cal. Code Regs., tit. 15, § 2402, subd. (a)), 1 and there is overwhelming uncontradicted evidence to the contrary.

*820 The Board has exceptionally broad discretion “to identify and weigh the factors relevant to predicting ‘by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts.’ ” {In re DeLuna (2005) 126 Cal.App.4th 585, 591 [ 24 Cal.Rptr.3d 643 ], quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 655 [ 128 Cal.Rptr.2d…

In this case we hold that the Board of Prison Terms ("Board") [1] misconstrued section 2402 of title 15 of the California Administrative Code by requiring an inmate to have parole plans in both California and Mexico. The prisoner is serving a life sentence for murder and has a hold placed on him so he can be deported to his native country of Mexico. At the time of the commitment offense, the prisoner was in the United States illegally and remains an illegal alien. Despite the Board's erroneous interpretation of section 2402, we affirm the Board's decision to deny parole solely on the basis of the commitment offense.

Petitioner Liber R. Andrade was convicted in 1982 of second-degree murder and aggravated assault and was sentenced to a term of 17 years to life. His minimum eligible parole release date was January 30, 1991. Because Andrade is an illegal alien from Mexico, the Immigration and Naturalization Service ("INS") [2] placed a "hold" on him, indicating its intent to deport him to Mexico. At his first parole hearing, on March 22, 1990, he was found to be suitable for parole, and the Board set a June 1995 release date. However, in May 1995 the Board rescinded his…