In re Armstrong
Howard Armstrong was sentenced in 1988 to a prison term of 17 years to life after a jury found him guilty of second degree murder with a firearm. Armstrong, now 53 years old, has remained in prison for more than 20 years. After several parole hearings at which parole was denied, the Board of Parole Hearings (BPH) found him suitable for parole at his 2006 suitability hearing, at which it concluded Armstrong did not pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger (the Governor) reversed the BPH's decision, finding Armstrong posed an unreasonable risk of danger to society if released. Armstrong successfully petitioned the trial court for a writ of habeas corpus. Ben Curry, acting warden of the Correctional Training Facility (Curry), appealed the trial court's order granting Armstrong's petition for a writ of habeas corpus and his release from prison on parole, arguing Governor Schwarzenegger's decision was supported by some evidence and therefore must be upheld.
In an unpublished opinion filed June 2, 2008, this court affirmed the trial court's order and ordered Armstrong released under the conditions set forth in the 2006 decision of the BPH. (In re Armstrong (Jun. 2, 2008, D051629) [nonpub. opn.].) However, the California Supreme Court granted review and deferred further action in this matter pending order of the court, and subsequently transferred the matter to this court with directions to vacate our prior decision and reconsider the matter in response to In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis). The parties have filed supplemental briefs following transfer to this court. (Cal. Rules of Court, rules 8.200(b) & 8.528(f).) After further consideration, we again conclude the Governor's decision was not supported by some evidence, and therefore affirm the trial court.
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