In Re Capistran

In In re Rosenkrantz (2002) 29 Cal.4th 616, 676-677 [ 128 Cal.Rptr.2d 104 , 59 P.3d 174 ], our Supreme Court held that the Governor’s decision to deny parole will not be disturbed if supported by “some evidence.” But, in reaching that conclusion a reviewing court must also be satisfied that the Governor’s decision was based on the same factors “which the parole authority is required to consider.” (Cal. Const., art. V, § 8, subd. (b) (hereafter Article V, section 8(b).) Here we conclude that the report of the Governor required by Article V, section 8(b) was, in part, based upon facts for which there was not “some evidence,” and that the Governor failed to make an individualized consideration of the same factors upon which the Board of Prison terms (hereafter the Board) relied.

In 1985, Christopher Capistran was convicted of second degree murder and sentenced to an indeterminate term of 15 years to life in state prison. In 1999, the Board found that he was suitable for parole and set a parole date. After Governor Gray Davis reversed the Board’s decision, Capistran filed a petition for a writ of habeas corpus. The trial court granted the petition and directed the Board to…