# In Re Rosenkrantz

> California Supreme Court · December 16, 2002 · 128 Cal. Rptr. 2d 104

URL: https://www.frixlaw.com/law-library/cases/9795151

## Case

- **Full name:** In Re ROBERT ROSENKRANTZ on Habeas Corpus
- **Court:** California Supreme Court
- **Decided:** December 16, 2002
- **Citations:** 128 Cal. Rptr. 2d 104; 29 Cal. 4th 616; 2002 Daily Journal DAR 14087; 59 P.3d 174; 2002 Cal. Daily Op. Serv. 12006; 2002 Cal. LEXIS 8317
- **Precedential status:** Published
- **Opinion:** Concurrence by Moreno
- **Judges:** George, Werdegar, Chin
- **Cited by:** 312 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated by In re Lawrence, 44 Cal. 4th 1181 (2008).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9795151

## How later opinions describe it (automated extraction)

- holding that prisoners have a protected liberty-interest in parole under the due process protections of the California Constitution
- noting that California parole regulations define the "minimum eligible parole date for life prisoners as the earliest date on which the prisoner may legally be released on parole”
- holding that Governor’s reversal of parole grant is subject to state judicial review

## Opinion text

*689 MORENO, J.
I concur in the majority opinion. I write separately to emphasize one aspect of the opinion and its implications for the future of petitioner’s case.
The majority upholds the Governor’s decision denying parole because of his findings on the nature of petitioner’s commitment offense. But as the majority states: “In some circumstances, a denial of parole based upon the nature of the offense alone might rise to the level of a due process violation—for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. Denial of parole under these circumstances would be inconsistent with the statutory requirement that a parole date normally shall be set ‘in a maimer that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . .’ (Pen. Code, § 3041, subd. (a).) ‘The Board’s authority to make an exception [to the requirement, of setting a parole date] based on the gravity of a life term inmate’s current or past offenses should not operate so as to swallow the rule that parole is “normally” to be granted. Otherwise, the Board’s case-by-case rulings would destroy the proportionality contemplated by Penal Code section 3041, subdivision (a), and also by the murder statutes, which provide distinct terms of life without possibility of parole, 25 years to life, and 15 years to life for various degrees and kinds of murder. (Pen. Code, § 190 et seq.) [^|] Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.’” (Maj. opn., ante, at p. 683, italics added.) The majority concludes that there was no due process violation in this case because the Governor reasonably found “certain circumstances of petitioner’s offense, as well as his postoffense conduct, . . . involve[d] particularly egregious acts beyond the minimum necessary to sustain a conviction for second degree murder.” (Ibid., italics added.)
The Governor’s primary reason for finding the circumstances of petitioner’s offense particularly egregious is that it involved premeditation and deliberation, and that, as the Governor stated, the petitioner “should be grateful that he was not convicted of first degree murder.” Although I agree that evidence of premeditation and deliberation supports the conclusion that petitioner’s crime was particularly egregious for a second degree murder, it is another matter whether any evidence would support the same conclusion for a first degree murder. Other than felony murders, first degree murders by definition involve premeditation and deliberation. Moreover, there was sufficient doubt over whether premeditation and deliberation existed to persuade a jury to acquit petitioner of first degree murder. Furthermore, petitioner’s offense did not appear to partake of any of those characteristics that *690 make an offense particularly egregious under the Board of Prison Terms’ parole eligibility matrix for first degree murders, e.g., torture, the infliction of severe trauma not involving immediate death, or murder for hire. (Cal. Code Regs., tit. 15, § 2403, subd. (b).) Nor is it certain that petitioner’s lack of remorse immediately following the crime, by itself, would make the crime exceptional compared to other first degree murders.
The significance of the above observations is this: there will come a point, which already may have arrived, when petitioner would have become eligible for parole if he had been convicted of first degree murder. Once petitioner reaches that point, it is appropriate to consider whether his offense would still be considered especially egregious for a first degree murder in order to promote the parole statute’s goal of proportionality between the length of sentence and the seriousness of the offense. (See In re Ramirez (2001) 94 Cal.App.4th 549, 570-571 [ 114 Cal.Rptr.2d 381 ] [in conducting parole proportionality analysis, the court considers the gravity of the offense in relation to the time in prison already served].) Under this circumstance, the justification for denying his parole would become less clear, even under the deferential “some evidence” standard. Thus, future denials of petitioner’s parole may warrant judicial reappraisal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9795151. Public record. Not legal advice.