Parole Reversed by California Governor
In In re Smith (2003) 109 Cal.App.4th 489, the Governor reversed the Board's grant of parole to Smith, in part because during his incarceration Smith received four minor disciplinary reports. (Id. at p. 500.)
In fact, Smith had received four CDC 128-A's and no CDC 115's in prison, and one of the commissioners at Smith's parole hearing commended him because he had not " 'had any 115's' " and had been " 'disciplinary-free' " the entire time. (Id. at p. 496 & fn. 5.)
The appellate court affirmed the trial court's grant of Smith's petition for writ of habeas corpus, holding that " 'some evidence' " did not support the Governor's decision. (Id. at p. 507.)
As for the Governor's reliance on the inmate's minor "disciplinary reports," the court explained, "there is no evidence to support the Governor's statement that Smith received four 'disciplinary reports' (minor or otherwise) while in prison.
In prison argot, 'counseling chronos' document 'minor misconduct,' not discipline, and the evidence is undisputed that Smith has been 'disciplinary-free' for the entire period of his incarceration." (Id. at p. 505.)
In re Smith, supra, 109 Cal.App.4th 489 establishes that a CDC 128-A is not a disciplinary report.
Smith does not hold or even suggest that a CDC 128-A may never serve as evidence justifying the Board's denial of parole due to its reasonable concern about an inmate's ability to succeed on parole.
The Board relied on petitioner's receipt of a CDC 128-A only because it violated a prior direction of the Board, and because, unlike the defendant in Smith, petitioner had an extensive history of institutional misconduct.