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Leyva v. Nielsen9/26/2000
resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."
The chairman of the Board of Prison Terms "shall be the administrative head of the board and shall exercise all duties and functions necessary to insure that the responsibilities of the board are successfully discharged." (Pen. Code, § 5075.) "The Board of Prison Terms shall succeed to and shall exercise and perform all powers and duties granted to, exercised by, and imposed upon the Adult Authority, the California Women's Board of Terms and Paroles, and the Community Release Board." (Pen. Code, § 5078, subd. (a).) These duties include the duty to "consider the request of any inmate regarding the length of his or her parole and the conditions thereof." (Pen. Code, § 3000, subds. (b)(3), and (6).)
The Board is therefore entrusted with "the power to allow prisoners imprisoned in the state prisons pursuant to subdivision (b) of Section 1168 to go upon parole outside the prison walls and enclosures." (Pen. Code, § 3040.) Penal Code section 3041 sets out certain minimum periods of parole, and section 3046 states a minimum period of confinement for persons incarcerated for an indeterminate life term. Since the record here does not indicate the particulars of plaintiff's crime or sentencing, the application of these sections to plaintiff cannot be determined.
Nevertheless, it is obvious, as plaintiff argues, that the process of considering an application for parole consists of determining both the prisoner's eligibility for parole, i.e., whether he has served the requisite minimum period of confinement, and his or her suitability for parole. Although plaintiff seeks to limit his complaint to eligibility issues to avoid the effect of section 848.5, it is clear that the determination of whether a prisoner should be paroled is discretionary.
The Supreme Court has described the parole release decision as follows:
"The parole-release decision, however, is more subtle and depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release. Unlike the revocation decision, there is no set of facts which, if shown, mandate a decision favorable to the individual. The parole determination, like a prisoner-transfer decision, may be made, `for a variety of reasons and often involve no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate.' [Citation.] The decision turns on a `discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.' [Citation.]" (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 9-10.)
Since the parole determination process is discretionary, the Chairman of the Board of Prison Terms, the other commissioners, and deputy commissioners are immune from suit under sections 848.5 and 820.2 for injuries allegedly resulting from their discretionary decisions.
Accordingly, the trial court did not err in sustaining Defendant's demurrer .
DISPOSITION
The judgment of dismissal is affirmed.
We concur:
McKINSTER J.
RICHLI J.
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