In re Kilgore

Filed 3/6/06 In re Kilgore CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

The Board of Prison Terms (Board) appeals from the judgment of the Superior Court of Santa Clara County granting Molly Mae Kilgore's petition for writ of habeas corpus. Kilgore sought writ relief in the superior court following the Board's denial of parole.

Statement of the Facts and Case

In October 1978, Kilgore and her codefendant Martina Griffin went to a bar and met the victim, Byron O'Brien and had a drink with him. After having a drink in the bar, O'Brien invited them to his house for a drink. The three got into O'Brien's car, and he drove them to accomplice Ruby Johnson's house, where Griffin was staying, so she could get a coat. When Griffin returned to the car, she had a concealed knife that she then gave to Kilgore to conceal in her stocking. Griffin then reentered the house, and returned to the car with codefendant Jack Scott who also got into the car. After driving a short distance, Scott pulled out a gun and ordered O'Brien to pull over. After O'Brien complied, everyone got out of the car, and Kilgore pulled out the knife. After the victim handed his money over to the defendants, Scott fired one shot in the air and ordered everyone back into the car. After the victim got back into the car, he was shot and killed.

Kilgore claimed that Scott was the one who actually shot and killed the victim. However, as the victim was dying, he said one of the women shot him. There was no evidence that Griffin, the only other woman at the scene, ever held the gun. Moreover, Kilgore admitted to Johnson that she was holding the gun when it went off, and Griffin identified Kilgore as the shooter. There is also evidence that Kilgore hit the victim over the head with a coke bottle.

Kilgore pleaded guilty to first degree murder, robbery and conspiracy to commit robbery. She was sentenced to a term of 11 years to life, with the possibility of parole. Kilgore's minimum eligibility parole date was set at October 15, 1985.

In October 2003, the Board held a parole hearing and denied Kilgore's parole. The Board based its decision on Kilgore's crime, deciding that the offense was committed in a â€