In Re Montgomery

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, 664-667 , 128 Cal.Rptr.2d 104 , 59 P.3d 174 ) 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 , 34 Cal.Rptr.3d 905 ) inasmuch as the denial rests solely on the gravity of the offense. We conclude that it does not, and that to hold otherwise could render the…