Metropolitan News-Enterprise


Monday, November 17, 2003


Page 1


C.A. Overturns Order Freeing Man Convicted of Killing Wife


By KENNETH OFGANG, Staff Writer/Appellate Courts


An order requiring the state to release a San Quentin inmate on parole, 22 years after he barged into the home of his estranged wife, killed her, and assaulted the man she was with, has been overturned by the First District Court of Appeal.

Div. Four Thursday overturned Marin Superior Court Judge Verna Adams’ order granting a writ of habeas corpus to Barney McClendon, who was convicted of second degree murder. The Board of Prison Terms had previously found McClendon suitable for parole, but Gov. Gray Davis vetoed his release.

The Court of Appeal stayed Adams’ order in September of last year. Three months later, the court handed down its decision in In re Rosenkrantz (2002) 29 Cal.4th 616. That decision holds that the governor’s veto of a parole suitability determination must be upheld if it is supported by “some evidence” in the record of the proceedings before the board.

That standard was met, Justice Patricia Sepulveda wrote for the Court of Appeal, by proof that McClendon killed his wife in a deliberate manner.

“While petitioner denies any preexisting plan or intent to kill anyone, the circumstances suggest a calculated attack,” the justice wrote. “Certainly, petitioner’s suspicious conduct constitutes some evidence that he engaged in premeditation and deliberation.”

The justice explained:

“Here, petitioner arrived at his estranged wife’s home in the middle of the night wearing rubber gloves and carrying a handgun and wrench, which he used to attack his wife and another victim....While petitioner was not convicted of premeditated murder, that fact ‘does not preclude the Governor from considering such evidence [of premeditation and deliberation] in exercising his discretion whether to reverse a Board decision granting parole.’  ...We conclude that there is ‘some evidence’ supporting the Governor’s determination that the circumstances of the crime warranted a longer prison commitment than ordered by the Board.”

The governor was not required to accept the defendant’s explanation that he brought the gun merely to show to his wife, who had no demonstrated interest in guns, the justice said. Nor was the governor required to make itemized findings with regard to all of the factors relevant to parole suitability, such as the extent of the defendant’s rehabilitation, Sepulveda said.

The justice explained:

“The Governor is required to provide a written statement specifying his reasons for any reversal or modification of a Board decision; nothing in the California Constitution or statutes specifies that the Governor must provide a detailed written analysis of each parole suitability factor.....Nor may we infer that the Governor failed in his duty to consider all relevant, reliable information in determining suitability for parole because he did not discuss each factor....There exists a general presumption that official duty had been regularly performed....Moreover, the Governor stated that he considered the same factors considered by the Board, and his statement of reasons for his parole decision shows a thorough understanding of petitioner’s circumstances.”

The case is In re McClendon, 03 S.O.S. 5800.


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