California Court of Appeal Jul 24, 2015 No. D067284Unpublished
Filed 7/24/15 In re Ferguson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re KENNETH MICHAEL FERGUSON D067284
on
Habeas Corpus.
Original proceeding on a petition for writ of habeas corpus. Petition dismissed as
moot.
Law Office of Marc Eric Norton and Marc Eric Norton for Petitioner.
Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney
General, Phillip J. Lindsay and Gregory J. Marcot, Deputy Attorneys General, for
Respondent.
In 2014, the Board of Parole Hearings (Board) found that Kenneth Michael
Ferguson did not pose an unreasonable risk to society and was suitable for parole. The
Governor requested that the Board review the decision en banc. (Pen. Code, § 3041.1,
undesignated statutory references are to this code.) After its en banc review, the Board
vacated the earlier grant of parole. Ferguson challenges the Board's decision, contending
he was deprived of due process because the doctrine of res judicata barred the decision
and no evidence establishes a rational nexus to support the Board's conclusion that he is
currently dangerous. As we shall explain, we dismiss the petition as moot.
intended to effectuate public policy by " ' "awarding substantial attorney's fees . . . to those
who successfully bring such suits and thereby bring about benefits to a broad class of
citizens." ' " (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917,
933.) Here, Ferguson has not shown that this writ proceeding enforced an important right
affecting the public interest or that it benefits a broad class of citizens. Accordingly, an
award of private attorney general fees is not appropriate.
Nor has Ferguson shown an award of costs is appropriate. Rules 8.278 and 3.1702
apply only to civil appeals. Although rule 8.493 allows the prevailing party in an original
proceeding to costs when the matter is resolved by the issuance of a peremptory writ,
Ferguson is not a prevailing party and the rule does not apply "in a criminal or juvenile or
other proceeding in which a party is entitled to court-appointed counsel." (Rule
8.493(a)(1); Rule 4.551(c)(2) ["On issuing an order to show cause, the court must appoint
counsel for any unrepresented petitioner who desires but cannot afford counsel."].)
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III. Conduct of the Rescission Hearing
Where, as here, parole has been granted, it may be rescinded only upon a showing
of good cause. (In re Powell, supra, 45 Cal.3d at p. 901; Cal. Code Regs., tit. 15, § 2450;
see §§ 3040, 3063.) A rescission panel may not find good cause based upon its
disagreement with the granting panel's assessment of the facts. (In re Caswell (2001) 92
Cal.App.4th 1017, 1027.) "[T]he proper focus is on the findings and conclusions that
were central to the original panel's ultimate decision to grant parole." (Id. at p. 1029.)
An adequate factual underpinning must exist for the Board's determination of cause. (Id.
at p. 1027.) When the "basis for the rescission [is] not new evidence, but a purportedly
inadequate consideration of evidence by the granting Board," (id. at 1028) the ground for
rescission must "reflect[] more than a mere disagreement with the ultimate determination
reached by the [granting] panel." (Id. at 1034.) Instead, the rescission panel must
"target[] a specific conclusion of the granting panel and establish[] the disparity between
the conclusion and the evidence." (Ibid.) It must be presumed that the panel granting
parole considered all the evidence before it. (Id. at p. 1031.)
Additionally, we urge the Board to familiarize itself with Ferguson I and
Ferguson II wherein we granted writ relief. A final judgment granting habeas corpus
relief is res judicata. (In re Fain (1983) 139 Cal.App.3d 295, 301.) Nonetheless, the
doctrine of res judicata does not " 'operate so as to prevent a re-examination of the same
question between the same parties where, in the interval between the first and second
actions, the facts have materially changed or new facts have occurred which may have
altered the legal rights or relations of the litigants.' " (Ibid.) The Governor's concerns,
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like public outcry, do not constitute good cause for rescission. (See Id. at p. 302.)
Emotion plays no part in parole decisions; rather such decisions must be based on
specific information. (Ibid.)
We also remind the Board of the disposition in Ferguson II; namely, that it is
bound by our "findings and conclusions regarding the evidence in the record" and by our
"conclusion that no evidence in the record before [us] supports the Board's determination
that [Ferguson] is unsuitable for parole." (In re Prather (2010) 50 Cal.4th 238, 258.)
The Board is precluded from denying parole unless some "additional evidence,"
considered alone or in conjunction with other evidence in the record, and not already
considered and rejected by us, supports a determination that Ferguson remains currently
dangerous. (Ibid.)
DISPOSITION
The petition is dismissed.
MCINTYRE, J.
I CONCUR
MCDONALD, J.
I CONCUR IN THE RESULT:
MCCONNELL, P. J.
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AI Brief
AI-generated · verify before citing
Holding. The court dismissed the petition for writ of habeas corpus as moot because the Board of Parole Hearings issued a new order that superseded the challenged 2014 minute order, thereby rendering the original controversy non-justiciable.
Issues
Whether the Board's 2014 minute order vacating a grant of parole violated the petitioner's due process rights.
Whether the petition for writ of habeas corpus became moot following the Board's issuance of a 2015 minute order superseding the 2014 order.
Whether the petitioner is entitled to sanctions or attorney fees under the private attorney general doctrine or court rules.
Disposition. dismissed
Quotations verified verbatim against the opinion
“the 2015 minute order expressly superseded and thus mooted the 2014 minute order. No effective relief can be granted on the 2014 minute order”