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.


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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. 

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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