Filed 4/20/15 Certified for publication 5/19/15 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT


                                                                    H040564
In re RICHARD SENA,                                                (Santa Clara County
                                                                    Super. Ct. No. 149169)
         on Habeas Corpus.



         The Governor appeals from the Santa Clara County Superior Court’s
January 13, 2014 order granting prisoner Richard Sena’s petition for writ of habeas
corpus and directing Sena’s release on parole. As set forth below, we will reverse the
superior court’s order.
                                FACTUAL AND PROCEDURAL HISTORY
         On March 13, 1992, Sena was convicted of second degree murder. He is currently
serving a sentence of 16 years to life for that crime.
         On November 29, 2011, the Board of Parole Hearings (hereafter “the Board”)
granted Sena parole. The Governor reversed the Board’s decision on April 26, 2012.
         In a written order issued on September 18, 2012, the superior court reversed the
Governor’s decision, finding that the Governor’s decision was not supported by some
evidence. The order directed that Sena “be released per the terms of his parole within 5
days.”
         On October 3, 2012, while still incarcerated, Sena exposed his penis to a female
correctional officer and masturbated in front of her. As a result of his conduct, Sena was
the subject of a rules violation report.
       Also on October 3, 2012, the Governor informed the Board that he would not
appeal the superior court’s September 18, 2012 order. That same day, apparently
unaware of Sena’s alleged rules violation, the Board issued a miscellaneous decision
reinstating the November 29, 2011 parole grant.
       At a hearing held on November 9, 2012, Sena was found guilty of the rules
violation. At a rescission hearing on November 21, 2012, the Board found Sena to be
unsuitable for parole, and it rescinded Sena’s parole grant. At the rescission hearing, the
Board cited Sena’s October 3, 2012 rules violation as evidence that Sena posed a danger
to society if released from prison.
       On November 14, 2013, Sena filed a petition for writ of habeas corpus challenging
the Board’s rescission of his parole grant. In the petition, Sena argued that the superior
court’s September 18, 2012 order required his release from prison on September 23,
2012, and that the Board lacked authority to rescind his parole grant based on prison
misconduct that occurred after September 23, 2012.
       In a written order issued on January 13, 2014, the superior court granted Sena’s
petition for writ of habeas corpus and directed that Sena “be released on parole within 48
hours of the Attorney General’s receipt” of the order. The superior court explained that
its September 18, 2012 order required Sena’s release from prison on September 23, 2012,
that Sena was “illegally confined” after September 23, 2012, and that the Board could not
rescind Sena’s parole grant based on prison misconduct that occurred after
September 23, 2012. The superior court emphasized: “[T]his Court’s order that [Sena]
be released on September 23, 2012 was binding and [the Board’s] failure to comply is not
excused.”




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         The Governor appeals from the January 13, 2014 order.1 We now turn to the
merits of the appeal.2
                                        DISCUSSION
         The Governor urges us to reverse the superior court’s January 13, 2014 order.
Among other arguments, the Governor asserts that the January 13, 2014 order was
erroneous because the order it was predicated upon—the September 18, 2012 order
mandating Sena’s immediate release from prison—provided relief that “the law declares
shall not be given.”
         As explained below, we conclude that the September 18, 2012 order improperly
directed Sena’s release from prison on September 23, 2012. Given that the
January 13, 2014 order was premised on the faulty notion that Sena had an absolute
entitlement to release on September 23, 2012, we must reverse the January 13, 2014
order.
Standard of Review
         The parties agree that this appeal presents a question of law. We apply the de
novo standard of review to questions of law. (In re Collins (2001) 86 Cal.App.4th 1176,
1181.)




         1
         This court issued a writ of supersedeas, staying enforcement of the
January 13, 2014 order until final determination of this appeal.
         2
          On July 28, 2014, Sena filed a “Motion to Strike Part of Appellant’s Reply Brief
or Alternatively Motion for Leave to File Supplemental Brief.” Sena lodged a
supplemental brief with his motion. On August 27, 2014, we ordered that the ruling on
Sena’s motion would be deferred for consideration with the merits of the appeal. We
now deny Sena’s request to strike portions of the reply brief and grant Sena’s request to
file his supplemental brief.
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       We Must Reverse the January 13, 2014 Order
       “ ‘The power to grant and revoke parole is vested in the Department of
Corrections, not the courts.’ ” (In re Prather (2010) 50 Cal.4th 238, 254.) The decision
to release a prisoner on parole is “expressly committed to the executive branch. . . . . It is
not a judicial decision.” (In re Morrall (2002) 102 Cal.App.4th 280, 287.)
       “[W]hen a court determines that a gubernatorial reversal of a parole decision is
unsupported, the remedy is not an order for the inmate’s immediate release; rather, the
court vacates the Governor’s reversal, reinstates the Board’s grant of parole, and directs
the Board to conduct its usual proceedings for a release on parole. This allows the Board
to account for any recent developments reflecting on the inmate’s suitability for parole,
and to rescind its grant if appropriate.” (In re Lira (2014) 58 Cal.4th 573, 582 (Lira); see
also In re Twinn (2010) 190 Cal.App.4th 447, 473-474 (Twinn) [when a court sets aside
the Governor’s reversal of the Board’s parole suitability determination, the court does not
order the prisoner released from prison; the appropriate remedy is to direct the Board to
conduct release proceedings, a procedure that allows the Board to consider the prisoner’s
current suitability for parole and to rescind parole if appropriate]; In re Copley (2011)
196 Cal.App.4th 427, 435-437 (Copley) [same].)
       On September 18, 2012, the superior court determined that the Governor’s
reversal of Sena’s parole grant was not supported by some evidence. As a remedy, the
September 18, 2012 order directed that Sena be released on parole “within 5 days.” This
remedy, immediate release from prison without directions to the Board to conduct
appropriate proceedings, was improper. (See Lira, supra, 58 Cal.4th at p. 582; Twinn,
supra, 190 Cal.App.4th at pp. 473-474; Copley, supra, 196 Cal.App.4th at pp. 435-437.)
Thus, the premise of the superior court’s January 13, 2014 order—that Sena was entitled
to release on September 23, 2012 and could not be penalized for prison misconduct
occurring after that date—was faulty. Given that the January 13, 2014 order was based

                                              4
solely on the superior court’s erroneous conclusion that Sena had an absolute entitlement
to release on September 23, 2012, the January 13, 2014 order cannot stand.
       Indeed, the January 13, 2014 order was antithetical to public safety and
contravened the Board’s power to rescind a parole grant. Public safety is the paramount
consideration in parole decisions. (In re Shaputis (2008) 44 Cal.4th 1241, 1254; In re
Lawrence (2008) 44 Cal.4th 1181, 1210.) Thus, “[e]ven after parole is granted, the
Board is authorized to rescind the grant of parole, if unexecuted, for good cause.” (In re
Caswell (2001) 92 Cal.App.4th 1017, 1026; see also Lira, supra, 58 Cal.4th at p. 582 [the
Board is authorized to rescind a grant of parole if recent developments demonstrate a
prisoner’s unsuitability for parole].) Good cause exists “where the prisoner has engaged
in disciplinary misconduct subsequent to the parole grant.” (Copley, supra, 196
Cal.App.4th at p. 437.) The superior court’s January 13, 2014 order completely
disregarded the Board’s determination that, notwithstanding the previous unexecuted
grant of parole, Sena’s misconduct on October 3, 2012 evidenced his current
dangerousness and unsuitability for parole. The superior court’s failure to appreciate the
Board’s determination regarding Sena’s current dangerousness was misguided and
rendered the January 13, 2014 order improper.
       Accordingly, for the foregoing reasons, we conclude that the January 13, 2014
order cannot stand. We reverse that order.
                                      DISPOSITION
       The January 13, 2014 order granting Sena’s petition for writ of habeas corpus is




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reversed. The matter is remanded to the superior court with directions to vacate that
order and enter a new order denying Sena’s petition for writ of habeas corpus.



                                         ______________________________________
                                                    RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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Filed 5/19/15
                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


                                                    H040564
In re RICHARD SENA,                                (Santa Clara County
                                                    Super. Ct. No. 149169)
        on Habeas Corpus.



        THE COURT:
        The opinion in the above-entitled matter filed on April 20, 2015, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports, and it is so ordered. Pursuant to California
Rules of Court, rule 8.1105(b) and (c), this opinion is certified for publication.



                                           _____________________________
                                                 RUSHING, P.J.


_____________________________
PREMO, J.


_____________________________
ELIA, J.
Trial Court:
                               Superior Court No.: 149169

Trial Judge:                   The Honorable Linda R. Clark



Attorneys for Petitioner       Jonathan Grossman
Richard Sena:                  under appointment by the Court of
                               Appeal for Appellant




Attorneys for Respondent       Kamala D. Harris,
The People:                    Attorney General

                               Jennifer A. Neill,
                               Senior Assistant Attorney General

                               Sara J. Romano,
                               Supervising Deputy Attorney General

                               Phillip J. Lindsay,
                               Supervising Deputy Attorney General

                               Kathleen R. Walton,
                               Deputy Attorney General




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