The San Bernardino County District Attorney’s office has filed a motion asking the Supreme Court to allow the office to present briefing and argument regarding Governor Gavin Newsom’s request for the court’s permission to commute the life-without-possibility-of-parole sentence of Tyson Atlas. The office, which prosecuted Atlas, says it opposes the commutation, a position it made known to Newsom in documents Newsom has included in the record he submitted to the court.

The state constitution requires a governor to get a court recommendation before granting clemency to anyone who, like Atlas, has been “twice convicted of a felony.” Newsom has said he contemplates the commutation would lead not necessarily to freedom, but to an earlier parole suitability hearing. Even without a commutation and despite the life-without-parole sentence, it seems Atlas — who committed murder as a minor — would be entitled to a “youth offender parole hearing during [his] 25th year of incarceration.” (Penal Code section 3051, subd. (b)(4).)

The court has said it reviews clemency recommendation requests under a deferential standard. (See here and here.) The denial of a request implies that a clemency grant would be an abuse of power.

The district attorney’s motion notes that the court has received only what Newsom has submitted with his recommendation request and claims it’s difficult to determine whether clemency would be an abuse of discretion “when only the person whose discretion is being reviewed is able to provide information and analysis.” “Without an adversarial process by which the Court may weigh and consider positions of opposing interests,” the district attorney adds, “the Court’s contemplation of the Governor’s request ventures uncomfortably close to an advisory opinion.” In cases on review, the court doesn’t like one-sided briefing.

The motion also states, “in a case in which an inmate stands convicted of a special circumstance murder and an unrelated attempted murder, and in which that inmate has served less than seventeen years, the gravity of the case and potential relief call for the benefits of a fully-developed record and briefing.”

Although only the Governor has provided information to the court, the record he sent does include “an objection” and “a supplemental objection” that the district attorney lodged with Newsom, according to Assistant District Attorney Robert Brown, who signed the motion. (See Penal Code section 4805.)

The Atlas clemency recommendation request was one of four life-without-parole commutation requests Newsom sent to the court in February. The district attorney has not filed a briefing-and-argument motion in the other matters because, of the four prospective clemency recipients, only Atlas was prosecuted in San Bernardino County.

No one else has moved for briefing and argument in Atlas or in any of the other pending life-without-parole clemency matters. In fact, we’re unaware of briefing and oral argument regarding any previous gubernatorial clemency recommendation request.

Assuming the general motion rule applies to clemency matters, any opposition to the district attorney’s motion is due Monday and a failure to oppose “may be deemed a consent to the granting of the motion.”

It’s not known whether the Governor will respond to the motion. His office didn’t respond to a request for comment.

[Update: The Governor’s office has now told At The Lectern that he will be responding to the motion, but has no further comment.]

[May 26 update: The court last week denied the district attorney’s motion before the Governor filed any response. (See here.)]


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