In re Denham 12/5/12: NEW Parole Hearing ORDERed: Regulation say nothing explicitly about "escalating criminal conduct"

Filed December 5, 2012, First District, Div. Three Cite as A133492


SUMMARY:  The  Court of Appeal did not "buy" the BPH's reasoning given for the denial of Parole and thus ordered a new Parole Hearing. Two major reasons used by the Board was;  1) "escalating pattern of criminal conduct" and 2)“unstable social history".

See below for the Rebuttal from the Court specifically on those 2 reasons stated above.
 For Full text see http://www.metnews.com/sos.cgi?1212//A133492

  
The Board relied on Denham‟s “escalating pattern of criminal conduct,” which was purportedly evidenced by his preincarceration arrests for which he sustained no criminal convictions, and his 1987 conviction for weapons possession while in prison. The regulations concerning parole suitability say nothing explicitly about escalating criminal conduct. Among the factors tending to show unsuitability for parole is “Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.” (Regs., § 2402, subd. (c)(2).) The regulations do, however, provide that the Board is to consider all relevant, reliable information, including “past criminal history, including involvement in other criminal misconduct which is reliably documented.” (Regs., § 2402, subd. (b).) Thus, the Board was entitled to recognize that Denham‟s criminal conduct escalated from drug and weapons possession to murder. However, where the Board considers that factor to be predictive of current dangerousness, it must articulate why that is the case. (In re Roderick (2007) 154 Cal.App.4th 242, 264.) “ „[I]mmutable facts such as an inmate‟s criminal history‟ . . . do not by themselves demonstrate an inmate „continues to pose an unreasonable risk to public safety.‟ (Lawrence, supra, 44 Cal.4th at p. 1221, original italics.)” (Sanchez, supra, 209 Cal.App.4th at p. 975.) 

The Board also relied on Denham‟s “unstable social history” based on the fact that “he was involved in drug sales prior to incarceration.” However, Denham‟s involvement in selling drugs does not address his social history as that factor is defined in the regulations. An “unstable social history” is defined as a situation where “[t]he prisoner has a history of unstable or tumultuous relationships with others.” (Regs., § 2402, subd. (c)(3).) Conversely, “a stable social history” is defined as a situation where “[t]he prisoner has experienced reasonably stable relationships with others.” (Id., § 2402, subd. (d)(2).) Here, there is no evidence of any tumultuous or particularly unstable relationships. Indeed, when considering the date of Denham‟s next parole hearing, the Board found by clear and convincing evidence that public safety did not require an additional 15-year period of incarceration before his next hearing because of Denham‟s “[s]table social history.” Denham‟s involvement in selling drugs, however, was certainly a factor that the Board could consider in assessing parole suitability. (Regs., § 2402, subd. (b).) But given Denham‟s lack of any substance abuse history since 1986, his long-standing participation in 12-step programs, and his development of prosocial vocational skills, the Board must explain how his preincarceration history as a drug dealer predicts his current dangerousness.

The Board cites no evidence establishing that Denham‟s participation in the crime was anything other than what he described at the 2010 parole hearing.

CONCLUSION

A New Lifer Parole Suitability hearing was required when the board's denial was based on the defendant's lack of insight into his crime (among others stated above, his history of selling drugs but it did not adequately take into account his acceptance of responsibility for his crime or his longstanding participation in 12-step programs and other parole suitability factors.
 

Prop-36 Three strikes Law passes by a 68% to 32% vote

On November 6th, 2012 the voters enacted drastic changes to California’s old 1994 Three Strikes Law of 25 to Life. Under California Proposition 36 Three Strikes sentencing,  those whose new offense is non-serious will receive a sentence double the usual prison term.  Some current qualifying Three Strikers may have their sentence reduced. 

WHAT TO DO? 

FIRST an analysis must be done to see if the Inmate-Defendant is eligible for re-sentencing of his third strike. If you retain the services on Attorney Diane T.  Letarte, you will need to first fill out a Prop-36 QUESTIONNAIRE  to assist in the analysis. The questionnaire can be found under Attorney Letarte's website.

SECOND, you must file a Petition [under newly created Penal Code 1170.126] in Court before the November 6, 2014 DEADLINE.


The Courts have the discretion not to re-sentence.  Judges should understand (more than the non-attorney BPH Commissioners)  that re-sentencing is the expected outcome of the petition. A Refusal to re-sentence the three-striker is reserved for the Exceptions.  This means the court will give a 2nd-strike sentence, unless the petitioner would pose an “unreasonable risk … to public safety.” See CA  Penal Code  1170.126, subd. (f). Thus, The re-sentencing is a “post-conviction release proceeding”  therefore a lack of rehabilitation in prison, Misconduct (CDC-115, etc.)  or other abnormal individual case factors may foster the refusal to re-sentence the inmate at a lower sentence than the current 25 to Life.


More specifically, under amended PC 667, Inmate (defendant) is now facing only a 2nd-strike sentence unless 1) The current offense involves drugs, with an HS 11370.4 or 11379.8 allegation; or 2) The current offense is a felony; or 3) the current offense involves firearm(s); or 4) has a prior serious or violent offense-conviction for an enumerated number of offenses, such as “sexually violent offense",  homicide or attempted homicide, Solicitation to commit murder, etc.

Unlike the Petition to Advance Parole Hearings (aka PTA, BPH Form 1045(a)) where there is a limit to three times to file the PTA. The new Prop-36 law is silent on the number of times a Petition can be filed and the possible "wait" period between re-filing, if allowed. The only deadline known at this time is the 2-year as stated above.

REMEMBER: The re-sentencing is a “post-conviction release proceeding” under Cal. Const. art. I, § 28. Hiring an experienced attorney with Post-conviction expertise such as (Attorney Diane T. Letarte, MBA, LLM, MS)  may make the difference in a successful re-sentencing Petition in  your case.

In re Colonel 11/6/12: BPH wrongly denies an Inmate with EVASIVE response at Hearing

Case Name: In re Colonel , District: 6 DCA , Case #: H037166
Opinion Date: 11/6/2012 , DAR #: 15305


Comment: A big win for Lifers. Although the inmate may have been less than candid at the BOARD hearing, the Court finds no articulated link by the BOARD between that (deceitful)  fact and a current dangerousness!

HOLDING:
Board of Parole Hearings (BPH) wrongly denies parole where there is no evidence of a nexus between inmate's evasive responses and a finding of current dangerousness. The inmate was convicted in 1988 of second degree murder when a 20-year-old woman he surreptitiously induced to ingest PCP died of an overdose.

In June 2010, the superior court granted the inmate's writ petition, vacating BPH's decision to deny parole. The warden appealed. Held: Affirmed and remanded for new hearing. The warden argued that BPH's finding that the inmate was "deceitful" provided a basis for denial of parole regardless of whether the record contains some evidence of current dangerousness.

Although the inmate may have been less than candid or evasive regarding collateral matters discussed at the hearing, there was no rational nexus cited by BPH between the inmate's alleged lack of credibility and the determination he remains a current danger. The matters cited by BPH as examples of the inmate's failure to "come to grips" with his life crime were collateral to the crime or its causative factors.

The BPH's recitation of a fact, without any articulated link between that fact and a determination of current dangerousness, is insufficient to support a determination the inmate is unsuitable for parole.




Thanks to CCAP for this summary:

In re Sanchez 10/1/12 - The inmate's denial of the "official story" is NOT minimizing his role - A big WIN for the Lifers!

 In re Sanchez , District: 4 DCA , Division: 3 , Case #: G046189
Date: 10/1/2012, DAR #: 13676


In Short: The BPH's conclusion that the inmate refused to acknowledge responsibility for the offense was Arbitrary. Thus, the Board of Parole Hearings (BPH) erred by finding that the inmate represents a current danger.

Case Holding:
The Board of Parole Hearings (BPH) erred by finding that the inmate represents a current danger based on discrepancies between the Court of Appeal's summary of the life offense and the inmate's account. In 1993 the inmate committed a gang-related driveby shooting that left a man paralyzed from the waist down. He was convicted of attempted murder and other charges and sentenced to a term that included life with possibility of parole. On several occasions since 2006 the BPH denied parole. Since then the inmate did well in custody and accepted responsibility for the life offense. He attended self help groups, job training, and educational programs.

The inmate filed a writ petition after the BPH denied parole in 2010. Held: Petition granted and case remanded for a new parole hearing. The BPH denied parole because the inmate minimized his role both in the life offense and in his gang in 1993, which reflected a criminal mentality. This, along with his unstable social history and the nature of the offense, posed a current danger.

These conclusions were reached by relying on the Court of Appeal opinion on direct review, finding the inmate's denial of the "official account" a shirking of responsibility for the offense and minimizing his gang status, which meant he lacked insight into his life crime. However, any inconsequential discrepancies between the inmate's version of events and the opinion did not reflect continuing dangerousness. Although credibility regarding the inmate’s version of events is for the BPH to determine, here, the denial of parole did not turn on a question of the inmate's credibility but "on the Board's mistaken enshrinement of an official version of the offense."

 The BPH therefore did not give meaningful review to the inmate's credibility or insight into the life crime and the conclusion that the inmate refused to acknowledge responsibility for the offense was therefore arbitrary.


Thank you to CCAP for their summary of In re Sanchez case.

LIFER Parole Hearing Denial & Filing Petition to Advance (PTA) - BPH1045(A)

On November 4, 2008, California voters were apparently swayed by emotion into passing Proposition 9,  the Victims’ Bill of Rights Act (“Act”). While the proposition’s title was admittedly appealing and evoked understandable sympathy for the silent and defenseless,  the Act’s actual language raises serious Constitutional questions. To cover up the Constitutional issues and the violation of the  Ex Post Facto legal Principle  Marsy's Law changed Penal Code 3041.5 to permit a life inmate to submit a written request to the Board of Parole Hearings (BPH), to advance his or her parole Suitability hearing to an earlier date, if there is changed circumstances or new information, after receiving the new 3 year to 15 year Denial range. (Compared to the pre-Prop 9 law allowing only for 1 year to 5 year denials).
 
Some of the major reasons that Marsy's  (Prop 9) Law has not been seen as an "issue" with the Court is becasue of the "safety valve" created by the Petition to Advance (PTA) the Parole hearing if s/he was denied.  Unfortunately, the Courts are not looking at the Statistics for the 94% DENYrate of these PTA. Maybe Lifers should send a message to the State Courts and start challenging the BPH 1045(A) process via a WRIT OF HABEAS COPRUS (WHC)!

If you need assistance with the preparation of the PTA please. See ATTORNEY DIANE T. LETARTE's website on the PTA at   http://www.dianeletarte.com/product/Legal%20Opinion-995_Attorney-Petition-to-Advance-Lifer-Parole-Hearing 

If you need assistance with a WHC: See:  http://www.dianeletarte.com/liferappeals . If you can not afford to hire an attorney then contact Keith or Gary (x-inmate and pioneers of the parole process) at the address below for potential guidance in your Pro Se efforts.

A big THANKS to ECC for the hard work in fighting for the LIFERs. Keith Chandler and Gary Eccher were able to get the BPH 1045(A) Petition grant rate statistics via the PUBLIC information Request from the BOARD OF PAROLE HEARINGS (BPH, aka the BOARD). ECC   Eccher & Chandler Consulting produce bi-monthly - ECC Newsletters.    Keith and Gary can be reached at:

ECC   Eccher & Chandler Consulting
532 N. MAGNOLIA AVE. #333,
ANAHEIM, CA 92801


STATISTICS SUMMARY:

During the period of January 1, 2009 to June 5, 2012  there were 637 petitions to advance hearing (BPH 1045 form) submitted. 513 were summarily denied. 124 were granted full review.  42 petitions were granted a new hearing out of the actual 637 petitions submitted. That means only 6% of the actual petitions submitted were granted a new Lifer Parole Suitability hearing. That means 94% were denied.

PRISON REALIGNMENT = Musical Chair..................... Where will the LIFERS fall?

In  October 2011, Governor Edmund G. Brown Jr. signed Assembly Bill (AB) 109 and AB 117, historic legislation that will enable California to close the revolving door of low-level inmates cycling in and out of state prisons. It is the cornerstone of California’s solution for reducing the number of inmates in the state’s 33 prison to 137.5 percent of design capacity by June 27, 2013, as ordered  by the Three-Judge Court and affirmed by the U.S. Supreme Court.

California state prisons began moving "non-non-non" (non-serious, non-sexual, non-violent) offenders into county jails, the county probation system and county courts. By this 2012 summer the number of former state prisoners was expected to reach 6,000 in county jails.

HOW DOES THIS IMPACT LIFERS - INDIRECTLY?  (see below)

The combined effects of realignment, reducing the numbers of low level offenders headed to state prisons, and the recently implemented reclassification system, enabling many inmates to be housed in lower security level prisons, is causing CDCR’s prison to prison transfer of inmates to wobble. SIDEBAR:  LIFER attorney DIANE T. LETARTE has been in the prisons constantly but lately, the CDCR Staff is very frustrated with all these new changes!   Be PATIENT  !!! 

In order to accommodate the rapidly increasing numbers of inmates able to be housed in Level II facilities (lowest level for LIFERs)  the department has announced a series of YARD conversions and even the CLOSURE of aging California Rehabilitation Center at Norco.

In August 2012, the first reception center conversions taking place is with Facility D at RJ Donovan becoming a Level III SNY yard and Facility F at SATF swapping to a Level II EOP (Extended Out Patient). High Desert reception center yard Facility A convert to a Level III general population in October.

In one of the two big changes Valley State Prison for Women in Chowchilla will become a men’s facility, probably a Level II SNY facility. Most of the women prisoners now at VSPW are expected to transfer across the road to California Correctional Women’s Facility, also located in Chowchilla. The conversion is expected to be gradual, with the prison holding both men and women for a brief time, the men housed exclusively most likely on AFacility. The complete conversion is expected to take up to two months, barring unexpected complications.

California Medical Facility in Vacaville, now a Level III, will become Level II security in October and CDCR apparently will use the remaining two months of 2012 to stabilize and finalize these changes, as no other yard changes are slated until the beginning of 2013.

In January, 2013 Old Folsom, now a Level III, is expected to become a Level II general population and California Training Facility-North will also drop from Level III SNYs to Level II in February, with Ironwood changing its Level IV SNY Facility A to a Level III SNY in March.

In April Centinela will move Level IV GP Facility C to a Level II GP and Deuel Vocational Institute in Tracy will convert four yards now designated Level III GP to Level II and the remaining three yards, now reception centers, will become Level II GP yards. And in May Alpine Section at San Quentin will move from reception center to Level II general population. It is also reported are that some institutions, including California Men’s Colony in San Luis Obispo and CIM at Chino will be designated as facilities for those prisoners with chronic, but not acute, medical issues with resulting transfer of prisoners from many facilities.

The CLOSURE of California Rehabilitation Center (Norco) will be completed by Fiscal Year 2015/16 for an estimated saving of $160 million annually in operations and an additional savings of more than $200 million in repairs that won’t be needed to the aging and expensive to repair wooden housing units, many not ADA (American Disability Act) accessible.


NOTE: The above prison information is mainly from the Life Support Alliance (LSA) July 2012 Newsletter. LSA can be contacted at 916-743-1654 or 916-402-3750.    Thank you   LSA!!!

Office of the Inspector General no longer has independent investigation Authority! July 2010 Special Report Update!

Whatever happened to the OIG's July 2010 Special Report concerning the Board of Parole Hearings' (BPH) process for preparing psychological Evaluations used for parole suitability hearings and the parole board's commissioner training?

In short:  As of July 2011, the Office of the Inspector General (OIG) no longer has independent investigation authority or audit responsibilities. Thus, the CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION's (CDCR) CORRECTIVE ACTION PLAN (CAP) dated Janaury 2011, was the last update provided to OIG. Any concerns regarding the lack of Action on the three (3) specific findings will need to be forwarded to Ms.  Shaffer, the current BPH Executive Officer.   Jennifer.Shaffer@cdcr.ca.gov .


Findings in Brief for the July 2010: The Office of the Inspector General found that the Board of Parole Hearings (parole board) lacks reliable data to determine the number of factual errors contained in psychological evaluations and lacks reliable data to determine the number of low-, medium-, and high-risk assessment conclusions in evaluations. Reliable data would allow the parole board to perform certain analytical procedures to measure performance. In addition, we found weaknesses in the parole board’s oversight of the methods it uses to review psychological evaluations. Specifically, the parole board does not require senior psychologists to use source documentation when conducting their reviews, thereby limiting the reviewers’ effectiveness in detecting certain mistakes. In addition, the parole board does not actively monitor senior psychologists’ activities by requiring them to account for their time by case or by activity. Finally, the parole board failed to provide most of its commissioners, deputy commissioners, and senior psychologists with the sufficient number of mandatory training hours.

Where do inmates and attorneys stand TODAY after all the "fuss" with lack of training and errors in the  psychological Evaluations?  Attorney Diane T. Letarte requested an update from the new Inspector General,  Robert A. Barton . See attached response below:
==============================================

June 11, 2012

 Dear Ms. Letarte:

I am in receipt of your letter dated May 15, 2012. As you may be aware, I was not the Inspector
General at the time of the June 2010 report you referenced. I have now familiarized myself with
the report and I have also endeavored to ascertain if there was a subsequent response from the
Board of Parole Hearings (BPH) to the report. What we have been able to find is a California
Department of CorrectiOilS and Rehabilitation (CDCR) Corrective Action Plan (CAP), submitted
10 us for our January 2011 accountability audit. In the CAP, CDCR indicated their response to
each of our 20 I0 special review findings, with dates and status of implementations. (Please see
enclosed.)

I also wanted to inform you that as of July2011, the Office of tile Inspector General no longer
has independent investigation authority or audit responsibilities. Our budget and manpower was
dccreased 45 percent. We now carry out specific statutory duties including: a statewide intake
process for complaints, medical inspections of CDCR institutions, monitoring of the CDCR
employee discipline process, retaliation investigations, sexual assault in detention ombudsman
responsibilities, starting and chairing the California Rehabilitation Oversight Board, conducting
background investigations and providing recommendations to the Governor on all CDCR warden
and superintendent candidates, as well as specific authorized reviews requested by the
Legislature or Governor's Office.

Therefore, we will not be conducting further independent inquiry into your concerns. However,
I have communicated those concerns, as well as your suggestion for the use of recording
equipment for evaluations, to Ms. Jennifer Shaffer, the BPH Executive Officer, for her consideration. I would urge you to contact her directly wilh any additional BPH issues.

Thank you for your correspondence.

Roben A. Barton
Inspector General

cc: Jennifer Shaffer

=====================================================

BPH's FAD "civilly" SUED IN FEDERAL COURT (Johnson v Shaffer)

The FAD (Forensic Assessment Division) unit of the Board of Parole Hearings (BPH) have been applying unlawful procedures to consider  LIFER suitability for parole on an on-going basis. In late April 2012 Attorney Wattley filed a Federal civil rights action (http://dockets.justia.com/docket/california/caedce/2:2012at00551/237977/ ) against FAD. The Sixth Cause of Action notes the BPH refuses to record and transcribe psychological evaluation interviews: Our office was in the forefront, since the 2008 Shaputis decision to repeatedly call for recordings of the Psychological evaluation and/or to have Counsel present at the Psychological evaluation.

Attorney Letarte has been respectfully Denied by BPH many requests to be present or to record the Psychological evaluation of her clients. Attorney Letarte,  currently has a Writ (WHC) in the SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN BERNARDINO alleging among other causes that Petitioner (Lifer inmate) is Entitled to Have Counsel Present at His BPH Psychological Evaluation Pursuant to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. The Court requested the AG to file an informal response by 5/24/12.
STAY TUNE on the State side!

LSA (Life Support Alliance) is another entity who has repeatedly and publicly, in the monthly Executive Meeting of the BPH, called for such recordings and put this call on the public record. In another Cause of Action the Federal civil lawsuit suit notes the tests used in FAD evaluations are not standardized and are arbitrary, an argument LSA made forcefully in public BPH considerations of approving Title15 Section 2240. (For more LSA information see http://www.lifesupportalliance.org/mission.html )



In Psychological Rebuttal letters that our law office offer, (http://www.dianeletarte.com/Psych-Legal%20Rebuttal)  with the help of Independent Forensic Psychologists we have found many Rookie errors (among others) made by FAD Psychologists. For example: 
                  1.   Lack of transparency, i.e. reaches conclusions without showing how s/he got there;

2.   Inconsistent with his/her own data, e.g. FAD’s claim that Lifer has ASPD (Anti-Social Personality Disorder) in spite of a long history of pro-social, adaptive behavior;

3.   Manufacturing the ASPD diagnosis out of thin air;

4.   Numerous ethics violations;

5.   Use of “clinical judgment” to reach his/her opinions;

6.   Lack of quantification of the data s/he uses (e.g. insight, remorse).

 In an effort to level the playing field against evidence derived by applying unlawful psychological evaluation Sam Johnson, a lifer at San Quentin filed the civil rights action in the federal district court for the Eastern District of California. Under the Fourteenth Amendment and State constitution the litigation seeks “declaratory and injunctive relief under constitutional, statutory and regulatory law"  against officials of the California Department of Corrections and Rehabilitation (CDCR) and its Board of Parole Hearings (BPH).

Named as defendants are BPH Executive officer Jennifer Shaffer, Secretary of Corrections Matthew Cate, Governor Edmund G. Brown, Jr. BPH’s Chief Psychologist and FAD head Dr. Cliff Kusaj, Dr. Richard Hayward (the FAD psych who wrote Johnson’s evaluation), and the BPH Commissioner and Deputy Commissioner who denied Johnson parole based on the FAD evaluation.
 
In support of the court action,  Johnson v Shaffer, Wattley continues to seek input from lifers who have experienced some of the egregious activities noted in the suit through a series of questions included below:

1. Expert opinions stating that the PCL-R, HCR-20 or LS/CMI are not valid predictors of future violence among a population like California’s Lifers.
2. Challenging FAD evaluations based on either one substantial or three administrative errors, or both.
3. Requests to have psychological interviews tape recorded.
4. Requests to have FAD psychologist present at parole hearings.
5. Unexplained changes in risk assessment from one evaluation to the next from “low” to either “moderate” or “high.”
6. Attempts to interview or speak with FAD psychologist after the report is written but before the hearing.
7. BPH either overlooking substantial errors when the rest of the evaluation puts the prisoner in a negative light, but emphasizing errors when the rest of the evaluation puts the prisoner in a positive light. This includes the BPH finding the report to be inconclusive.
8. You requested the raw scores or underlying data that supported the FAD psychologist’s report.
9. You requested to call witnesses (either friendly or adverse) at your parole hearing.
10. The FAD psychologist gave you a diagnosis of Antisocial Personality Disorder even though you had little or no previous criminal or delinquent history.
. You were denied parole at an initial hearing when the risk assessment was “low” or “low/moderate”.
12. You have seen inconsistent labeling (low, medium/moderate or high) of numerical findings. For example, on one scale a 6% ranking would be labeled “medium,” while on another scale a 7% ranking would be labeled “low.”
13. BPH hearing panel conducted very little or no review of your written comments/objections to FAD psychological evaluations. For example, your written comments/objections did not make it into the Board Packet or was not presented to the hearing panel in a timely manner.
14. The BPH has defended its decision to use the PCL-R, HCR-20 or LS/CMI, including their reliance on an expert panel who reached a consensus on these tools.
15. The BPH violated California’s rulemaking statutes when developing the FAD regulations.
16. Any other FAD problem not listed here.

Of these particulars methods and manner of use spelled out in Wattley’s case,  A BIG KUDO to LSA who has been in the forefront of finding, collecting and using information relative to many of the above issues.

STAY TUNE on the Federal side!!!

In re Pugh 3/22/12, LIFERS do not always have to talk about the crime but should participate at the Hearing.

In re Pugh (2012), Cal.App.4th No. C066229. Third Dist. Mar. 22, 2012.] In re WILLIAM JON PUGH, On Habeas Corpus. (Superior Court of Sacramento County, No. 10F00495, Cheryl Chun Meegan, Judge.)

ONE MORE WIN FOR THE LIFERS!

Even if the Lifer chose not discuss the crime, he can still show insight by participating in the hearing. The AG also tried to argue that Pugh's lack of insight is evidenced by his varied depictions of the crime, his continued denial of culpability, and his problematic psychological evaluations. The Court found no evidence to support any of these assertions.  READ ON!

The Governor does not get a second bite at the apple. His reversal is vacated and the GRANT of Parole by the Board is re-instated. The Lifer is to be release per the BOARD's conditions.


=======================================================================
OPINION

Charged with first degree murder, William Jon Pugh was convicted of second degree murder and sentenced to 15 years-to-life plus two years. At the time of the murder in April 1986, Pugh was 18 years old. He spent the next 24 years in prison before being released at age 42 pending this appeal.

 The Board of Parole Hearings (the Board) granted parole in October 2009. Governor Arnold Schwarzenegger reversed the Board's decision the next month. Pugh filed a writ of habeas corpus in the trial court, which was granted. The warden of the Deuel Vocational Institution where Pugh was housed at the time of the Board hearing filed this appeal from the judgment of the trial court granting the writ.

We shall affirm the judgment of the trial court. Appellant argues Pugh's current dangerousness is evidenced by his lack of insight into the offense combined with the heinous nature of his crime. We find no evidence in the record that Pugh currently lacks insight into his offense. Furthermore, we find no evidence of any recent history of lack of insight. Appellant's claim that the lack of insight makes the heinous nature of the crime probative to Pugh's current dangerousness must, therefore, be rejected. Because the nature of the offense is no longer an accurate indicator of current dangerousness, the trial court correctly granted Pugh's petition for writ of habeas corpus.  

REMEDY

The trial court ordered the Governor's decision reversed and vacated, and the Board decision reinstated. Appellant argues that if we affirm the trial court, the proper remedy is to remand to the Governor to proceed in accordance with due process. Appellant cites In re Prather, supra, 50 Cal.4th at pages 257-259, {Slip Opn. Page 24} in which the Supreme Court held that when a court reverses a determination of unsuitability by the Board it is limited to ordering the Board to conduct a new parole suitability hearing in accordance with due process of law. However, Prather has no application to the Governor's reversal of the Board. Prather expressly acknowledged that its prior decisions "did not determine the proper remedy when a reviewing court grants a petition for writ of habeas corpus on the basis that the Board's decision to deny parole was not supported by some evidence of current dangerousness" because the prior decisions "addressed the Governor's reversal of a grant of parole by the Board."

 Instead, the Supreme Court has tacitly approved the remedy of reinstating the Board's decision when the Governor's reversal is not supported by some evidence of current dangerousness. In Lawrence, supra, 44 Cal.4th at page 1190, as here, the Governor reversed the Board's decision to grant parole. The Court of Appeal granted the inmate's habeas corpus petition and reinstated the Board's decision. The Supreme Court affirmed the judgment of the Court of Appeal. Thus, the disposition was to reinstate the Board's decision, and not to remand the case to the Governor.  

DISPOSITION

The judgment is affirmed. Hull, J., and Murray, J., concurred.

This court denied appellant's petition for writ of supersedeas and request for temporary stay of the trial court order vacating the Governor's decision on November 4, 2010. Pugh was released from custody the following month.

Further references to an undesignated section are to the Penal Code. Section 5011, subdivision (b) states: "The Board of Prison Terms shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed." The factors tending to show unsuitability for parole are that the prisoner: (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)

The factors tending to show suitability for parole are that the prisoner: (1) does not possess a violent juvenile record; (2) has a reasonably stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills; and (9) has engaged in institutional activities indicating an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)

At oral argument, counsel for appellant brought up an additional claimed inconsistency not mentioned in the Governor's reversal-- that the victim's pants were not unzipped when the body was found. The only evidence regarding this fact that we have been able to find in the record presented to us is in our earlier opinion affirming Pugh's underlying conviction. We have granted appellant's request that we take judicial notice of the opinion. Even so, the opinion does not provide evidence of any inconsistency. The only reference to the victim's pants being unzipped is a statement in the opinion that the victim "apparently started to unzip his pants[.]" (Italics added.) There is no clear inconsistency. The opinion indicates that the victim started to unzip his pants, not that he did unzip them. Because of the impreciseness of the English language, this reference could mean the victim made a motion as if to unzip his pants, or that he grabbed his zipper, but never unzipped his pants, or that he partially unzipped his pants. In any event, the Governor did not rely on this fact for his reversal, and it cannot be viewed as an inconsistency that would render Pugh's version of events implausible.

At oral argument, appellant's counsel stressed that Pugh refused to talk about the circumstances of the commitment offense in his parole hearing. In Shaputis II, supra, 53 Cal.4th 192, this was an issue because Shaputis refused to give any testimony at his parole hearing and refused to be interviewed by the psychologist appointed by the California Department of Corrections and Rehabilitation. (Id. at p. 199.) Instead, he presented a written statement at the hearing prepared with the help of his counsel and hired his own psychologist, who submitted a report.  Because these differed from older reports and statements in the record, the Supreme Court held that if the Board relied on the earlier reports in the record, the courts could not choose to rely on the later reports instead.

The court stated, "often the most recent evidence as to the inmate's level of insight will be particularly probative on the question of the inmate's present dangerousness, but that is not necessarily the case. If the newest evidence is unreliable or insubstantial, the parole authority is not bound to accept it." (Ibid.) The court noted that if the inmate refuses to participate in the hearing, the parole board must base its decision on other information. Such other information is not limited to the information the inmate chooses to present, and the Board may weigh the credibility of such information against the other evidence in the record.

 In this case, Pugh did not refuse to participate in the hearing at all, but only declined to discuss the circumstances of the crime. He discussed the circumstances of the crime in his parole hearing the year before, in 2007, and the record contains psychological evaluations prepared for the Board in 2007 and 2008. There was no issue here of ignoring newer, inconsistent evidence because it was submitted by Pugh. To the extent appellant argues the inmate's decision to refrain from discussing the circumstances of the offense gives the Governor carte blanche to ignore later evidence and rely only on the earliest psychological evaluations and the inmate's earliest statements about the crime, we disagree. 

=========================================================================  
NOTE:  For full opinion DISCUSSION

See In re Pugh (2012) , Cal.App.4th [No. C066229. Third Dist. Mar. 22, 2012.]
 In re WILLIAM JON PUGH, On Habeas Corpus.
(Superior Court of Sacramento County, No. 10F00495, Cheryl Chun Meegan, Judge.)

SOURCE: : http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2012/c066229.html

In re Morganti: 3/28/12 Lack of Insight - NO nexus for current dangerousness

Another win for the LIFERS, the Commissioners where "slapped" for substituting their own hunches vs. using the actual facts in trying to push a denial.

In re Morganti Case #: A132610
District: 1 DCA, Division: 2 ,
Opinion Date: 3/28/2012 , DAR #: 4115

Case Holding:

Lack of insight into the relationship between drug abuse and the crime, alone, does not support a finding of parole insuitability; there must be a connection between the lack of insight and current dangerousness.

In 1991, petitioner, while heavily involved in drugs, stabbed his friend 26 times, after learning the victim was cheating him by fraudulently billing costs to petitioner's credit card. He then set fire to the victim's room and fled. Petitioner was convicted of second degree murder and arson and sentenced to 21 years to life. The record reflects that he subsequently made a positive adjustment; he participated in virtually every available rehabilitative program; he remained drug and alcohol free; he accepted that he had abused drugs; and he returned to his church. He is approaching 60 and has chronic and degenerative health problems. Despite these factors, the Board found him unsuitable for parole, believing petitioner lacked "insight" into his drug abuse.

Parole applicants have a due process liberty interest in parole with parole being the rule rather than the exception. The onus is on the Board to justify a denial of parole suitability, taking into consideration factors specified by statute and regulation. Using these factors, the Board must assess whether the inmate poses an unreasonable risk of danger to society if released on parole and there must be a rational nexus between the evidence considered and the finding of current dangerousness.

On review, the court must determine if the Board's decision reflects consideration of the relevant statutory factors and, if it does, if its analysis is supported by a modicum of evidence in the record that is rationally indicative of current dangerousness. Lack of insight supports a denial of parole only if it is rationally indicative of current dangerousness.

Here, the court found that even if there was a lack of insight on petitioner's part, a conclusion it seemed to question, the record was bereft of evidence connecting any such deficit to the conclusion that petitioner is currently dangerous. The matter was remanded with direction to conduct a new parole hearing.



Note: Summary Adapted from CCAP's weekly summary of cases.

In re WING 1/5/12: 4th District Div 1 strikes back after SHaputis II

FACTS:

In 1995, a jury convicted James Wing of second degree murder and also found he personally used a firearm to commit the offense. The court sentenced him to prison for 15 years to life, plus a four-year enhancement under section 12022.5, subdivision (a). Wing, at age 41, began serving his indeterminate term in 1995 and participated in an initial parole consideration hearing on January 13, 2010. The Board of Parole Hearings (the Board) found Wing unsuitable for a release date and denied him parole, setting a new suitability hearing in three years.

After the trial court denied a request for habeas relief, Wing filed the present petition for writ of habeas corpus. Wing asserts the Board's conclusion is not supported by some evidence that, if paroled, he currently would pose an unreasonable danger to the public. He also contends the application of Marsy's Law to increase his time between parole suitability hearings violates the federal and California Constitutions' ex post facto provisions. We need not discuss the latter contention because we conclude the record does not contain "some evidence" to support the Board's ultimate conclusion that Wing was unsuitable for parole because he currently poses an unreasonable risk to public safety.

Accordingly, we grant Wing habeas relief.


THE BOARD'S DENIAL IS NOT SUPPORTED BY SOME EVIDENCE

In this case, because the court below denied Wing's petition for a writ of habeas corpus, the current petition for habeas relief is an original proceeding that requires we independently review the record to determine whether there is some evidence to support the Board's decision in denying Wing parole. (In re Scott (2004) 119 Cal.App.4th 871, 884.) In other words, "we independently review the record [citation] to determine 'whether the identified facts [by the Board] are probative to the central issue of current dangerousness when considered in light of the full record before [the Board].' [Citation.]" (Vasquez, supra, 170 Cal.App.4th at pp. 382-383.)


ANALYSIS by the Court

The parties disagree as to the factors the Board relied on in denying Wing parole. The Attorney General argues the Board relied on both the circumstances of the commitment offense and Wing's purported lack of insight. Wing, claims the Board only relied upon his lack of insight of the causative factors of the life offense in denying him parole.

A- CIRCUMSTANCES OF THE LIFE CRIME

The Board clearly referenced the circumstances of the life crime in supporting its decision. "As far as the offense goes, it was a very reckless offense, a murder." The Board then again described in detail the facts of the life offense. We thus conclude the Board was stating, perhaps inartfully, it was relying upon the circumstances of the commitment offense in support of its denial. There would have been no reason to repeat the facts of the life offense in detail otherwise.

Even assuming the Board found that Wing committed the life offense "in an especially heinous, atrocious or cruel manner," this factor does not support the Board's denial on this record. The commitment offense predates incarceration and is immutable. In Lawrence, supra, 44 Cal.4th 1181, the court explained that parole for murderers is the rule, not the exception, and therefore, the immutable aggravated circumstances of an offense alone rarely will provide a valid basis to deny parole after an inmate has served
the suggested base term and when there is strong evidence of rehabilitation and no other
evidence of current dangerousness.

Simply put, the Board's reliance on the circumstances of the life offense must be combined with some other evidence of current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1214.) On the record before us, we have no other indication of Wing's current dangerousness. As such, we conclude the circumstances of the life crime, committed some 15 years prior to the 2010 suitability hearing, without additional evidence, have little probative value regarding Wing's dangerousness to society if released.

B - MINIMIZATION/LACK OF INSIGHT

A prisoner's insight into his offenses and his understanding of the nature, magnitude and causes of his crime are important parole suitability factors. (In re Rodriguez (2011) 193 Cal.App.4th 85, 97.) Further, a "petitioner's current attitude toward the crime constitute[s] [a] factor[] indicating unsuitability for parole." (Shaputis, supra, 44 Cal.4th at p. 1246.) A conclusion that a petitioner remains dangerous and is
unsuitable for parole can be supported by evidence that, among other things, the petitioner "is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative 'programming.' " (Id. at p. 1260.) However, expressions of insight and remorse will vary from inmate to inmate and there are no special words for an inmate to articulate to communicate he or she has committed to ending a previous pattern of violent or antisocial behavior.

The Supreme Court has recently discussed the "lack of insight" on the part of inmates and how the Governor or parole authorities may use lack of insight in parole decisions. (In re Shaputis (Dec. 29, 2011, S188655) ___ Cal.4th ___ [2011 DAR 18585] (Shaputis II).) In that case, the court reaffirmed the requirement of judicial deference to executive branch decisions regarding paroles. The court noted parole authorities can use this factor as a basis of a parole denial and that judicial review is limited to determining
whether there is a modicum of evidence to support the executive decision. The court recognized lack of insight may be an indicator of current dangerousness.

Shaputis II, supra, ___ Cal.4th ___ [2011 DAR 18585] does not require us to defer to the Board's decision based on lack of insight. It is apparent from a review of the record, as noted below, there is no evidence of a current lack of insight on the part of Wing. Indeed, the entire discussion by the Board focused on the events surrounding the commission of the life offense. Those events are relevant to parole review, but nothing in
the Board's analysis supports a finding of current dangerousness based on a lack of insight at the time of the offense.

CONCLUSION

But for the immutable nature of his life crime and the unsupported determination by the Board that he lacks insight, all the applicable regulatory criteria indicate that Wing is suitable for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (d).) Wing has been a model prisoner since 1995. He has addressed the anger that led to his life offense via self-help, vocational and educational programs, and therapy. He has no prior criminal
record or assaultive behavior, has no current mental health issues, and has remained discipline free in prison for over 15 years. The psychological evaluator concluded that Wing is a very good candidate for parole and would unlikely reoffend, finding him to be in the very lowest risk group for violence if released. The Board was satisfied with Wing's parole plans. The evidence at the hearing showed that Wing was credible, remorseful and that he had insight into his crime for which he accepted full responsibility. Given the undisputed evidence of Wing's rehabilitation and the lack of some evidence of current dangerousness to support the Board's decision, we are compelled to conclude under the standards adopted by Lawrence, supra, 44 Cal.4th 1181, and applied in this case, that the Board's decision is not supported by some evidence and therefore violated Wing's due process rights. Accordingly, Wing is entitled to habeas relief. Because the Board's finding of no suitability for parole has no evidentiary support, it cannot stand.

Accordingly, the Board's decision denying parole is vacated and the matter is remanded to the Board for a further hearing in accordance with due process standards as articulated in In re Prather (2010) 50 Cal.4th 238.

In re Thompkins 2/15/12 PTA - Inmate or Attorney can not attend Advance Hearing request

Summary:

The Petition to Advance (PTA, BPH form 1045(a)) the next Parole hearing is not adversarial in nature and does not require attendance by the inmate or the Attorney. The Court found that the protections which are in place for parole revocation hearings (Morrissey v. Brewer, 408 U.S. 471) are NOT applicable to the PTA!


Case Name: In re Thompkins , District: 4 DCA , Division: 1 , Case #: D060171
Opinion Date: 2/15/2012 , DAR #: 2072

Case Holding:
Prison inmate has no due process right to attend hearing on his request to advance his next parole hearing date. In 1988, a jury found petitioner guilty of murder for the shooting death of his wife and wounding of her boyfriend. In 2009, BPH found petitioner unsuitable for parole, rescheduling his next parole hearing for 2012, pursuant to the 2008 amendments to Penal Code section 3041.5 (Marsy's Law).

In 2010 petitioner asked to advance his next parole date, asserting changed circumstances warranted an earlier hearing. Neither petitioner nor his attorney were allowed to be present when his request was considered and denied. In his habeas petition, he claimed the procedure BPH employed denied him due process and was an abuse of discretion. The Court of Appeal affirmed the procedure used.

An inmate's ability to seek advanced parole review requires a showing of changed circumstances or new information which establishes a reasonable likelihood that considerations of public safety do not require an additional period of incarceration. There is nothing in section 3041.5, subdivision (d)(2) which requires the BPH to hold an adversarial hearing to rule on an inmate’s request to advance his next parole hearing date. The denial of such an application does not implicate a federally protected liberty interest, so the inmate has no due process right to demand an adversarial hearing.

The protections which apply at parole revocation hearings are inapplicable to proceedings to decide whether parole should be granted in the first instance. Further, there was no abuse of discretion in denying an advanced hearing date, as there was some evidence supporting it.

In re Shaputis (II) 12/29/11 - Difficult case for LIFERs

Case Name: In re Shaputis (II) , CalSup , Case #: S188655
Opinion Date: 12/29/2011 , DAR #: 18585

Although the case is not very favorable to the Lifers there is a very good concurring opinion from Justice Liu, J. that almost sounds like a dissent, thus, giving golden nuggets of advice. See the short extract below:

CONCUR BY: Werdegar; Chin; Liu

The emphasis on judicial deference is part of the court's effort to summarize the principles governing judicial review of parole decisions. Because today's opinion focuses on the obligations of reviewing courts, I think it useful and complementary to summarize a few principles governing the Board's obligations as well.

As we have repeatedly said, the parole statute and regulations put the onus on the Board to justify denial of parole: " '[T]he governing statute provides that the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction. (Pen. Code, § 3041, subd. (b).) And as set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment after considering the circumstances enumerated in section 2402 of the regulations, that the prisoner is unsuitable for parole. Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.' (Rosenkrantz, supra, 29 Cal.4th at p. 654, [*60] italics added; see also In re Smith (2003) 114 Cal.App.4th 343, 366 ['parole is the rule, rather than the exception'].)" (Lawrence, 44 Cal.4th at p. 1204.)

In light of this basic statutory obligation to grant parole unless public safety is at risk, we have held that the Board, as a matter of due process, has a duty to provide "a definitive written statement of its reasons for denying parole." (In re Sturm (1974) 11 Cal.3d 258, 272.) The requirement of a definitive written statement of reasons serves two functions.

First, it serves to "adequately inform the inmate" of the reasons for the denial (ibid.) so that the inmate is given a fair opportunity to make the life changes necessary to be considered suitable for parole in the future.

Second, the requirement fulfills the "mandate that a basis for administrative action must be set forth with sufficient clarity as to be understandable" so as "to afford an adequate basis for judicial review." (Ibid.) Although the Board is not required to "comprehensively martial the evidentiary support for its reasons" (maj. opn, ante, at p. 24, fn. 11), it is required to point to evidence in the record that supports its reasoning. Otherwise, the statement of reasons would be conclusory and would fail to concretely inform the prisoner and the reviewing court of the Board's decision-making process.

The Board's obligation to provide a definitive written statement of reasons for denying parole shapes the nature of judicial review. As we said in Lawrence, the task of reviewing courts is to "determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety" (Lawrence, supra, 44 Cal.4th at p. 1213) and specifically to determine whether the Board's or the Governor's decision includes "reasoning establishing a rational nexus" between identified unsuitability factors and current dangerousness (id. at p. 1210).

In other words, the focus of judicial review is on the rationality of the Board's or the Governor's decision-not only the ultimate conclusion of current dangerousness - but also the evidence and reasoning on which the Board or Governor actually relied to reach that conclusion


Case Holding:

The Court of Appeal erred in re-weighing the evidence relied upon by the executive branch when it found petitioner unsuitable for parole.

Petitioner was convicted of the second degree murder of his wife in 1987 and sentenced to 15 years to life, plus two years for a gun use. The Governor's reversal of petitioner's 2006 grant of parole was reversed by the Court of Appeal.

On review the Supreme Court found the question in determining suitability for parole is whether the inmate currently poses a public safety threat. This issue is directed to the executive branch -- first to the BPH and then to the Governor, who may review the entire record in evaluating the inmate's progress during incarceration.

The inmate's insight into the life crime is a relevant factor in determining current dangerousness. An inmate's decision not to participate in the parole hearing or psychological evaluations prepared for the hearing may not be held against him, but such lack of involvement does not limit the BPH or the Governor in their evaluation of the evidence.

A court reviewing a parole determination must employ the highly deferential "some evidence" standard, which requires it to uphold the executive branch's decision as long as there is a "modicum of evidence" to support the parole suitability finding. The question whether the inmate is currently dangerous is reserved to the executive branch. The reviewing court is not authorized to reweigh the evidence -- it must uphold the parole suitability finding if "there is a rational nexus between the evidence and the ultimate determination of current dangerousness." Reversed.