Filed 2/10/21 In re Morrison CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| In re SYLVESTER WELDON MORRISON,
on Habeas Corpus. | H048070 (Santa Clara County Super. Ct. No. C1923832) |
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Sylvester Weldon Morrison, an 83-year-old prisoner serving an indeterminate life sentence for second degree murder, petitions for a writ of habeas corpus seeking relief from a decision by the Board of Parole Hearings (the Board) finding him unsuitable for parole.
After we summarily denied his petition, the California Supreme Court granted review and transferred the matter back to us with orders to vacate our denial and issue an order to show cause why the Board did not abuse its discretion. Accordingly, we vacated our summary denial and ordered the Secretary of the Department of Corrections and Rehabilitation to show cause why the Board did not abuse its discretion in finding petitioner unsuitable for parole.
In response, the Attorney General filed a return in this court, and Morrison filed a traverse. In the interim, the Board held another parole suitability hearing and granted Morrison parole. Because we conclude the petition is now moot, we will deny it without prejudice to refiling in the event the decision granting parole is disturbed on review by the Board or the Governor.
- Factual And Procedural Background
In 1984, Morrison was working as a 47-year-old butcher at a market when he became addicted to cocaine. He began selling cocaine and passing fraudulent checks to fund his habit. He passed the checks drawing on the market’s account with the assistance of the market’s bookkeeper, to whom he supplied cocaine. In the course of an argument with the bookkeeper, he struck her head multiple times with a metal bracket and killed her. He hid her body in a cooler and stole approximately $13,000 in cash receipts from the market. After police arrested him, he confessed to the crimes.
Morrison pleaded guilty to second degree murder and grand theft, and he was sentenced to 16 years to life consecutive to four years in state prison. He is now 83 years old and has served 36 years of his sentence. Aside from the current commitment offenses, Morrison had no record of any prior arrests or convictions.
Morrison first became eligible for parole in 1996. The Board denied him parole numerous times over the years as he often failed to appear at the hearings. In 2009, he became eligible for elderly parole consideration under Penal Code section 3055. He suffers from cancer of the brain and lungs, and he has undergone brain surgery, radiation, and chemotherapy. He also suffered a seizure and has chronic obstructive pulmonary disease.
In May 2019, Morrison appeared with counsel for his eighth parole hearing before the Board. He testified that he had received chemotherapy and radiation and that he was suffering from memory loss and other cognitive disabilities. He was able to walk a mile a day, however, and he was exercising. Morrison testified that he had not used cocaine at any time during his sentence. The Board confirmed that Morrison had never been caught using drugs in prison, and he had not received a single disciplinary write-up. He explained that he had not attended prior parole hearings because he did not feel it would be right to be released, given that he had committed murder. Since he had gotten cancer, however, he decided he would rather die outside of prison. He expressed remorse for the killing, stating that “not a day goes by that I don’t remember what I did with [the victim].” He presented various letters of support, and documentary evidence that he would receive Social Security benefits, pension payments, and Medicare eligibility upon release. He stated he would not seek substance abuse treatment because he did not feel he needed it and he had no desire to do drugs.
Forensic psychologist Lisa Kalish had conducted an evaluation and risk assessment based on her examination of Morrison in January 2019. Dr. Kalish noted he suffered from confusion and a mild neurocognitive disorder, perhaps as a result of his brain cancer or a subsequent seizure. She noted that his prior substance abuse problem played a role in the offenses and observed that he had not been an active participant in treatment programs in recent years. She also noted, however, that he had denied using drugs or alcohol in prison and “there was no information to contradict his report.” Dr. Kalish stated that Morrison exhibited a lack of insight about his own psychological issues and behavior, and she opined that he was unlikely to improve in this area given his advanced age and health concerns. Nonetheless, based on her analysis of the relevant risk factors, Dr. Kalish concluded Morrison presented a low risk for violence.
In denying parole, the Board cited four factors to support its decision: absence of a drug relapse plan; inability to identify the reasons he used drugs; lack of remorse; and failure to participate in rehabilitative programs during the past
16 years.
Morrison then petitioned the Santa Clara County Superior Court for a writ of habeas corpus seeking an order to the Board to conduct a new parole hearing. In February 2020, the Superior Court denied the petition on the ground that the Board’s decision was supported under the deferential “some evidence” standard of review.
In April 2020, Morrison petitioned this Court for a writ of habeas corpus asking us to vacate the Board’s decision and order it to hold a new parole hearing. We summarily denied the petition in May 2020.
Morrison then petitioned the California Supreme Court for review. In July 2020, the Supreme Court granted the petition for review and transferred the matter back to us with orders to vacate our denial and issue an order to show cause returnable here.
We issued an order to show cause in August 2020, and the Attorney General filed a return in September 2020. Morrison filed a traverse in October 2020. Because the Attorney General’s return informed us the Board would hold a new parole hearing in December 2020, we requested supplemental briefing from the parties on Morrison’s current parole status and whether the petition should be denied as moot if the Board had granted him parole.
In January 2020, the parties informed us by letter briefs that the Board had granted Morrison parole on December 9, 2020. The parties agree that the grant of parole is currently pending administrative review by the Board and will then be subject to review by the Governor.
- Discussion
As noted above, we requested supplemental briefing from the parties on whether we should deny the petition as moot given the Board’s decision granting parole to Morrison in December 2020. The Attorney General contends the petition is moot because this Court cannot provide any form of relief that Morrison has not already received. Morrison concedes he has received the requested relief—a new parole hearing—followed by a grant of parole, but he contends we should still adjudicate his petition on the merits because there is some chance the Board or the Governor could reverse or disapprove the decision. He argues that a decision from this Court ruling in his favor would provide the Board and Governor “guidance” when reviewing the decision and could potentially avoid further litigation.
- Legal Principles
“A case is considered moot when ‘the question addressed was at one time a live issue in the case,’ but has been deprived of life ‘because of events occurring after the judicial process was initiated.’ [Citation.]” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574.) “The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.” (Id. at p. 1574.) “The legal issues posed must be framed with sufficient concreteness and immediacy so that the court can render a conclusive and definitive judgment rather than a purely advisory opinion based on hypothetical facts or speculative future events.” (Teachers’ Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1040.)
“[A] decision granting habeas corpus relief in these circumstances generally should direct the Board to conduct a new parole-suitability hearing in accordance with due process of law and consistent with the decision of the court, and should not place improper limitations on the type of evidence the Board is statutorily obligated to consider.” (In re Prather (2010) 50 Cal.4th 238, 244 (Prather).)
- The Board’s Decision Granting Parole Rendered the Petition Moot
The parties agree that, in response to a petition from a Board decision finding a prisoner unsuitable for parole, our power to grant relief would be limited to ordering the Board to conduct a new parole suitability hearing in accordance with due process of law. (Prather, supra, 50 Cal.4th at p. 244.) Thus, we are not empowered to order the Board to release the prisoner or to place improper limitations on the type of evidence the Board is obligated to consider. (Ibid.) Because the Board has already held a new parole suitability hearing for Morrison, he has already received whatever relief we could have granted him, and we have no power to grant him any further relief.
Morrison argues nonetheless that the matter is not moot because the process is not yet final. The decision granting parole, if left undisturbed, would be final before the Board in April 2021. (Pen. Code, § 3041, subd. (b)(2).) Once the decision is finalized by the Board, the Governor would then have 30 days to affirm, modify, or reverse it. (Pen. Code, § 3041, subd. (b)(2); Cal. Const., art. V, § 8, subd. (b).) Thus, in the event the decision granting parole is left undisturbed, Morrison will be released from prison by May 8, 2021.
Morrison argues that there is some chance the Board could reverse or disapprove its decision. But the decision must remain final “unless the board finds that the panel made an error of law, or that the panel’s decision was based on an error of fact, or that new information should be presented to the board, any of which when corrected or considered by the board has a substantial likelihood of resulting in a substantially different decision upon a rehearing.” (Pen. Code, § 3041, subd. (b)(2).) We think this possibility is too speculative for us to adjudicate the matter on the merits. We decline Morrison’s invitation to provide the Board with “guidance”, as doing so would render our opinion advisory. The requirements of justiciability do not allow us to render advisory opinions on such speculative grounds. (Teachers’ Retirement Bd. v. Genest, supra, 154 Cal.App.4th at p. 1040.)
Accordingly, we will deny the petition as moot, but we will do so without prejudice to the refiling of the petition in the event the Board or the Governor disturbs the initial decision granting parole.
- Disposition
The petition for a writ of habeas corpus is denied as moot without prejudice to the refiling of the petition if the Board or the Governor disapproves, reverses, modifies, or vacates the decision granting parole.
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Greenwood, P.J.
WE CONCUR:
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Elia, J.
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Danner, J.
In re Morrison
No. H048070
