Metropolitan News-Enterprise


Monday, December 14, 2009


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C.A. Orders Release of Man Who Killed Child While Driving Drunk

Governor Cannot Review Case When Earlier Parole Denial Is Overturned for Lack of Evidence, Panel Says




The governor’s power to deny an inmate release on parole does not permit reconsideration when a denial is overturned for lack of evidence, the Court of Appeal for this district ruled Friday.

Justice Patti S. Kitching, writing for Div. Three, said James Masoner is entitled to a writ of habeas corpus that will free him from prison after serving more than 21 years for the death of 4-year-old Jessica Shaner.

Jessica was killed when a car driven by Masoner crashed into her family’s home south of Universal City. Masoner, who sold insurance, had a blood alcohol level more than twice the legal limit when tested more than two hours after the crash.

Witnesses said Masoner had been drinking with colleagues at lunch that afternoon, and again at an office party. He was sufficiently intoxicated that he had to be driven home, but when he was dropped off, he got into his own car and drove off, plowing into the Shaner house less than a block away, the witnesses testified.

Sufficient Malice

His decision to drive knowing how drunk he was, prosecutors said, was sufficient to constitute malice. Jurors found him guilty of murder, manslaughter and felony drunk driving, and he was sentenced to 15 years to life imprisonment.

The conviction was affirmed, and a federal habeas corpus challenge was rejected by the Ninth U.S. Circuit Court of Appeals. Masoner had contended that by finding him guilty of manslaughter, the jury implicitly found that the malice element of murder had not been proven, so that his conviction on the murder charge violated the Due Process Clause.

The Ninth Circuit ruled that under the jury instructions as given, it was possible to find Masoner guilty of both murder and manslaughter if he acted with malice.

He became eligible for parole in 1997, but was repeatedly turned down, and challenged several of the denials in state and federal habeas proceedings. All of the petitions were denied until Los Angeles Superior Court Judge Peter Espinoza ruled that there was insufficient evidence to support the 2005 denial and ordered Masoner’s release.

Release Stayed

That ruling was stayed by the Court of Appeal and overturned earlier this year. In In re Masoner (2009) 72 Cal. App. 4th 1098, the court held that Espinoza had overstepped his authority by denying the board an opportunity to consider evidence that may have emerged while the denial was under judicial review, and by denying the governor an opportunity to exercise his constitutional power to review board decisions.

In 2007, while the appeal from Espinoza’s prior order was pending, the board conducted another review and found Masoner suitable for parole. The record of that proceeding, Kitching noted, shows that he had not consumed alcohol in prison, had participated in Alcoholics Anonymous and other rehabilitative programs, had no criminal record apart from the conviction offense and an earlier drunk driving conviction, and was considered a model prisoner.

The governor reversed the decision, however, saying Masoner’s commitment offense was serious and that he lacked insight into his crime.

New Petition

In January of this year, Masoner filed a new habeas corpus petition, challenging the governor’s ruling. Espinoza granted the petition, saying the requirement that there be “some evidence” of dangerousness to support the denial was not met. He further ruled that “the Governor’s reconsideration would be futile” due to the lack of evidence and ordered that the denial be vacated and Masoner released.

The Court of Appeal again granted a stay, which it vacated Friday when it affirmed Espinoza’s decision. In the interim, the board held another parole hearing and again found Masoner suitable for release.

 Kitching on Friday rejected the contention that the trial judge’s ruling, like the one the court reviewed earlier this year, infringed on the governor’s constitutional authority.

“In contrast to Masoner I, where the Governor had not reviewed the Board’s 2005 parole decision, in this case the Governor has reviewed the Board’s 2007 parole decision,” the justice wrote. “...The Governor therefore was given a full opportunity to exercise his constitutional and statutory right of review.”

She added that “[r]emanding the matter to the Governor would be an idle act because the Governor has already reviewed the materials provided by the Board and, according to the superior court’s unchallenged order, erroneously concluded that there was some evidence in those materials to support a reversal of the Board’s decision.”

Kitching went on to say:

“If we were to adopt appellant’s position...a prisoner’s due process rights and the writ of habeas corpus would be meaningless under the circumstances of this case because the Governor could arbitrarily detain a prisoner indefinitely, without evidence of the prisoner’s current dangerousness and in violation of California law, and the courts would have no practical power to grant the prisoner relief. The rule proposed by appellant would entitle the Governor to repeatedly ‘reconsider’ the release of the prisoner no matter how many times the courts found that there was no evidence that the prisoner was currently dangerous. Such a rule would violate principles of due process and eviscerate judicial scrutiny of the Governor’s parole review decisions.”

The case is In re Masoner, 09 S.O.S. 7009.


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