In re Ilasa (4th Dist, Div.1) Agreement in Federal Litigation of California Prison Conditions Created Constitutional Liberty Interest; Some Evidence Supports Denial

Before I begin, let me say this case presents a difficult question and this panel responds with admirable competence.

Mr. Ilasa was convicted in 2010 of being a felony in possession of a gun with a gang enhancement.  Ilasa had a previous "strike" conviction.  For his misdeeds he received a nine year prison sentence.  Three years for the gun charge, doubled to six years via his prior "strike", plus three years for the gang enhancement.  

Between then and now there was a matter of a federal lawsuit concerning the constitutionality of California's prison conditions.  The acme of the litigation found the United States Supreme Court affirming a finding that California's present conditions violated our nation's Constitution.  

One result was that a panel of three federal judges was tasked with negotiating with the State to effect changes in the prison system that would result in the system passing Constitutional muster.  One of the changes agreed to, by the State and the panel, was that non-violent "second strikers" would become eligible for parole once they had served half of their original sentence.  It was further agreed that the standard for whether such a prisoner would be released on parole would consist of determining if the prisoner posed an "unreasonable risk of violence in the community".  

Once Ilasa had served half his nine-year sentence, his case was deemed eligible for parole and brought before the parole board.  After examining his current offense, prior record, institutional behavior, and medical status, the board determined Ilasa posed an unreasonable risk of violence to the community and denied his release.  Ilasa petitioned the trial court for a writ of habeas corpus and was denied.  He then petitioned the appellate court, which considers his petition on its merits and enters a denial. 

I repeat that this case presents a difficult legal issue and that the panel faces it head-on and issues an admirable opinion.  The first issue is whether this State-federal judicial panel agreement concerning this ad hoc "non-violent second striker" rule creates a Constitutional liberty interest.  This is not an easy question.  The California Penal Code would have Ilasa serve 80% of his sentence before release.  No California regulation gives Ilasa the opportunity for release after serving half his sentence, rather it is this "agreement" between the executive branch of California and the federal judicial panel, whose findings of a Constitutional violation were affirmed by the U.S. Supreme Court,that provides Ilasa an expectation of release. 

The panel makes two findings at the outset.  First, that this "agreement" creates an expectation of release and thus a protected liberty interest on the part of Ilasa.  Second, the "some evidence" standard governs whether Ilasa's protected liberty interest was violated by the parole board when it found him unfit for release.  

The result of the first finding is that the panel must address the second.  Examining the second, the panel finds some evidence supports the parole board's finding.  Ilasa not only possessed a pistol as a felon, he had a cache of ammunition, a rifle in his closet, an additional loaded magazine, and three red bandanas (the color of his gang) in his possession.  Combined with Ilasa's criminal history, the result is that "some evidence" supports the parole board's finding that Ilasa's early release would create an unreasonable risk of violence to the community.  Ilasa's petition is denied on the merits.