In Re Kler

In 1989, petitioner Kuldip S. Kler was convicted of second degree murder and sentenced to an indeterminate term of 15 years to life in prison. In May 2009, we granted petitioner’s petition for writ of habeas corpus that challenged his June 22, 2007 parole denial. (In re Kler (May 19, 2009, A121800) [nonpub. opn.].) In September 2009, the Board of Parole Hearings (Board) held a new hearing and found petitioner suitable for parole, a decision the Governor, in February 2010, reversed, relying exclusively on the facts of the commitment offense and petitioner’s purported lack of insight. Petitioner has filed another petition, challenging the Governor’s reversal, which we shall grant.

BACKGROUND

DISCUSSION

I. May—and Should—We Consider This Petition in the First Instance?

After the Governor’s reversal, petitioner filed the instant petition without first seeking relief in the trial court. The Governor argues that rule 8.385(c)(2) of the California Rules of Court prohibits us from entertaining this petition in the first instance. It is true that rule 8.385, which was enacted in response to In re Roberts (2005) 36 Cal.4th 575 [ 31 Cal.Rptr.3d 458 , 115 P.3d 1121 ] (Roberts),…