California Appellate Court Grants Writ, Reverses Governor, Reinstates PLN Writer’s Grant of Parole

by Marvin Mentor

The California Court of Appeal, 6th District, has twice granted the habeas petition of PLN contributing writer John Dannenberg, whose favorable Board of Parole Hearings (BPH) decision in 2005 was reversed by Governor Arnold Schwarzenegger based solely on the Governor’s politically skewed readjudication of Dannenberg’s second-degree murder case.

The appellate court initially found on December 3, 2007 that there was no evidence of a nexus between Dannenberg’s 1985 commitment offense and any purported dangerousness at the present time. [See: In re Dannenberg, 68 Cal.Rptr.3d 188 (Cal.App. 6th Dist. 2007)]. Accordingly, the court vacated the Governor’s decision and reinstated the BPH’s parole decision.

However, the California Supreme Court granted review pending its opinions in the related cases of In re Lawrence, 190 P.3d 535 (Cal. 2008) and In re Shaputis, 190 P.3d 573 (Cal. 2008). Following those rulings in October 2008, the Supreme Court vacated and remanded Dannenberg’s case to the Court of Appeal for reconsideration. In its latest ruling on January 23, 2009, the Sixth District again granted Dannenberg’s petition, reinstating his grant of parole. He was finally released from San Quentin State Prison on January 31, 2009.

Sentenced to 15-years-to-life and now 69 years old, Dannenberg had been repeatedly adjudicated not to be a danger to society if released. He was granted bail for the year pending his trial in 1986. On post-conviction in 1988, the trial court found there was “no evidence” that Dannenberg would be a danger if released pending appeal. In 2001, the Marin Superior Court granted Dannenberg’s pro per petition wherein he complained that he was wrongfully denied parole, holding (after a full evidentiary hearing that included testimony from former BPH Chairman Albert Leddy) that there was “not an iota of evidence of dangerousness if released.”

The California Court of Appeal (1st District) affirmed these findings [In re Dannenberg, 125 Cal.Rptr.2d 458 (Cal.App. 1st Dist. 2003)], but the California Supreme Court reversed in a hotly disputed 4-3 ruling [In re Dannenberg, 34 Cal.4th 1061 (Cal. 2005)] that created a new judicial standard for parole denial: “if the crime exceeded the minimum elements of the offense.”

The three dissenting justices labeled this standard “essentially meaningless” and said it would result in the “rubber stamping” of BPH decisions by any reviewing court. Indeed, the Loyola Law Review published a spirited 39-page criticism of the Supreme Court’s impossible standard, titled “In re Dannenberg: California Forgoes Meaningful Judicial Review of Parole Denials.” (See: 39 LoyL 907, Aug. 2006.) The Supreme Court later conceded in Lawrence that its “minimum elements of the offense” standard articulated in Dannenberg was in fact “unworkable.”

Subsequent to the California Supreme Court’s 2005 Dannenberg ruling, Dannenberg was granted parole at a regularly scheduled BPH hearing. However, Governor Schwarzenegger, following his policy of rejecting 90 percent of the BPH’s few grants of parole to lifers, and based solely upon an “inference” of greater culpability than the conviction offense, reversed the parole decision.

Dannenberg petitioned the Santa Clara County Superior Court for habeas relief but was summarily denied. The court ruled that “because there would always be ‘some evidence’” (e.g., an “inference”) that Dannenberg was guilty of something more than his conviction, he was in essence doomed to being forever found unsuitable for parole unless and until he confessed to that greater offense (of which he had been affirmatively acquitted during his jury trial).

Dannenberg then complained to the 6th District in a new writ that this process violated many legal protections, including double jeopardy, an inadequate legal burden of proof (California Evidence Code § 115 requires proof in administrative hearings to be a preponderance of the evidence), and the absence of any evidence of his current dangerousness.

The appellate court focused on the latter issue, asking the Governor to state what evidence linked Dannenberg’s 1985 offense to his current propensity for dangerousness. The Governor had already conceded in his parole-reversal decision that Dannenberg’s pre- and post-conviction records were “blemish-free,” and upon the appellate court’s order to show cause, the Governor was unable to muster “some evidence” proving otherwise, save – allegedly – the commitment offense.

In oral argument, the Court of Appeal asked the Attorney General (AG), “So, if Dannenberg has a hearing and is found unsuitable based solely on the crime, there’s no reason to ever give him another hearing?” The AG replied that another parole panel could have a different opinion. Dannenberg rebutted that this was arbitrary, in violation of due process. The AG then argued that the District Attorney had also opposed parole, and because he was a peace officer, that carried extra weight. However, the Court agreed with Dannenberg that the DA’s objection was simply a duplication of the Governor’s objection based upon the original offense.

Citing recent case law, the Court of Appeal held that it can be a violation of due process to “eternally” hold a prisoner to be an “unreasonable risk of danger to society if released” based solely on the immutable fact of the offense itself. While the Governor’s finding that Dannenberg’s crime was “especially egregious” would be permitted to stand as an exercise of his discretion, his reversal of the BPH’s decision could not stand because there was no evidence of Dannenberg’s current dangerousness. In addition to the passage of time, the appellate court relied upon Dannenberg’s spotless record both before and during his incarceration, as well as his exemplary programming history – an evidentiary record it declared was ”undisputed.”

Importantly for all California lifers, the Court observed that neither the Governor’s nor the District Attorney’s opinions rise to the level of “evidence.” Dannenberg had argued that were their opinions to be considered “evidence,” that would amount to a tautology because there would then always be “some evidence” to support the denial or reversal of favorable parole decisions.

With the appellate court’s 2009 order, Dannenberg’s two other state court cases, related to a 2007 BPH decision denying him parole (reversed by the Superior Court) and a 2008 ruling granting him parole (again reversed by the Governor), were mooted. Dannenberg represented himself in all of the court pleadings, but substituted San Jose, California attorney Steve Defilippis for oral argument before the appellate court. See: In re Dannenberg, 2009 Cal. App. Unpub. LEXIS 556 (Cal.App. 6th Dist. 2009).

[Editor’s Note: It is with great pleasure to see John finally released. His court saga illustrates that a writ of habeas corpus isn’t what it used to be. That it took multiple habeas petitions and favorable court rulings before John was actually released makes one wonder what happens to those prisoners who are wrongfully denied parole who are too mentally ill, too illiterate, too non English speaking or too “not with it” to be able to successfully litigate their way out of prison?]

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