In re Shaputis: Elderly Parole Hearing: FOUND SUITABLE

Mr. Richard Shaputis was finally found SUITABLE  (see below) by the Board of Parole Hearings’ 2-member Panel in Chino (CIM) at his Subsequent Parole Hearing #9 and 2nd Elderly Parole Hearing on November 1, 2016.   (Represented by Attorney Diane T. Letarte)


FACTUAL / PROCEDURAL BACKGROUND: Richard Shaputis was sentenced to 17 years-to-life for second-degree murder in the 1987 shooting death of his wife. He was originally found suitable in 2006, after a State Appellate Court ordered a new parole hearing with restrictions(*) on the Board of Paroles’ exercise of discretion.

We all know the court ordeal of In re Shaputis (2008) 44 Cal.4th 1241, wherein the appellate court granted his habeas petition and ordered the Board to conduct another hearing. The Governor reversed and the Supreme Court eventually granted review and, concluded there was “some evidence” to support the Governor's reversal decision, and therefore affirmed the Governor's ruling.

Mr. Shaputis had a new Board hearing in 2009, wherein he was denied parole. The appellate court again granted his habeas petition and ordered the Board to conduct yet another hearing. On December 29, 2011, a second review in three years of a state habeas corpus petition seeking review of an adverse parole decision, the California Supreme Court again reversed the Fourth District Court of Appeal, Div. 1, which had ordered a new hearing after finding that the Board of Parole’s decision to deny parole was not supported by “some evidence.”

In 2011, the unanimous Supreme Court made several significant holdings that while Shaputis’ decision to not speak to either the Board’s psychologist or the Board itself could not per se be held against him, the absence of such information and testimony could not be used as a shield to prevent the Board, in rendering an unsuitability decision, from relying on older evidence in the record.

In the 2nd Shaputis decision, the California Supreme Court elevated “lack of insight” into a central factor for the Board to consider when determining parole suitability. The Court also substantially reduced the “wiggle room” for California courts to review challenges to lifer parole denials, except those without a “modicum” of supporting evidence anywhere in the record.


2016 – Mr. SHAPUTIS’  2nd ELDERLY PAROLE HEARING: 

Inmates who are 60 years of age or older and who have been incarcerated for 25 years or more are eligible for the Elderly Parole Program.  Mr. Shaputis is now 80 years old and has served approximately 30 years on his 17 to - Life sentence.  During the 1st Elderly Parole Hearing (2015) Mr. Shaputis was denied 3-years and then returned for an earlier hearing under the Administrative Review (AR) in 2016.

In the 2015, the Board gave only lip service to Mr. Shaputis’ diminished physical condition. During the 2nd Elderly Parole in 2016, Commissioner Zarrinnam and Deputy Commissioner Desai truly followed the Three Judge Panel in the Plata/Coleman class action lawsuit that ordered the new elderly parole process.  That ruling required giving special consideration to an eligible inmate’s advanced age, long-term confinement, and diminished physical condition.

The 2016 Panel commented about the “elephant in the room;” looking face-to-face at Mr. Shaputis (not a cold transcript). They described he was old, frail, walking with a cane (mobility impairment), hearing impaired (both ears), vocal chord impaired (whispered through the whole hearing), had liver problems, amputated thumb, and was unassigned due to his physical impairments. The Commissioner commented that it would practically be impossible for Mr. Shaputis to be an unreasonable risk of danger, if released.

Although one of the 2016 Commissioners had a bit of a problem with the limited verbal expression of “insight” and remorse - he did find the commitment offense as described by Mr. Shaputis to be plausible. The other panel member did seem to find that Mr. Shaputis admitted to murdering his wife (not an accident) even though Mr. Shaputis stated that he was playing with the real gun like it was a toy.

Additional relevant suitability factors were brought forward. They included:

• ALL of Mr. Shaputis’ Psychological Risk Assessments concluded he was a LOW risk of violence, if released to the community. 
• His 30 years of incarceration without any Rule Violations i.e. CDC-115s or CDC-128s.
• No Confidential file memo.
•  His sobriety since 1987, subsequent to the fatal shooting of his wife.
• His realistic Parole Plans, including several transitional homes, and;
•  His marketable skills.  

Mr. Shaputis wrote a book report on Domestic Violence. He admitted hitting his wife and getting angry. He also took responsibility for his action. He analyzed and described his character flaws. In writing on Responsibility he states: “I created the caustic person that killed my wife…. I argued about money and how she raised the girls…it did become physical and emotional.” “I was so selfish in my use of alcohol to relieve my stress of family problems and work matters.”  Under his Insight Mr. Shaputis writes: “Between the alcohol and my character flaws, no one was right but me. For over 28 years, I have been trying to work on new skills. AA gave me the steps I should have understood and used many years ago.  In writing his Remorse-Apology statement he states: “I am so ashamed and very sorry, for what I did. I destroyed the life of a wonderful woman and most caring and loving mother and wife…I took Erma’s life; the alcohol did not pull the trigger, I DID… There is nothing that can justify my actions, even understanding the impact of my childhood, will not bring you back but it will assure I will never repeat this crime.”

Mr. Shaputis’ Relapse Prevention Plan discussed his internal and external triggers along with his new coping skills and he explains that alcohol was not a solution. He described his Anger issues and his distrust toward his family stemming from his childhood and his previous wife cheating on him [by getting pregnant when he already had a vasectomy.]  He discusses how he learned to be humble, understanding, and not so selfish.

For icing on the cake, Attorney Letarte hunted down Mr. Shaputis’ 1987 2nd trial transcript and read over 1100 pages to find a few interesting facts that made Mr. Shaputis’ story PLAUSIBLE regarding the shooting of his wife and the single-action “cocked” revolver, that laid on the floor next to his wife’s body. Mr. Shaputis always testified that he cocked the hammer once and pulled the trigger, not knowing the gun was “loaded” when he fired it [aiming at the fireplace]. He fired and the gun jumped out of his hands by the powerful “kick”, [possibly accidentally re-cocking the hammer]. He had never fired that revolver before, let alone the fact that the hand revolver was chambered with a .30 caliber Rifle bullet. The record corroborates that the revolver was fired only once.

Furthermore, Attorney Letarte was able to debunk the “on-going” hearsay that Mr. Shaputis mistreated all his daughters, including the alleged sexual assault. In reality he pled “nolo contendre” to a PC 647(a) “a conviction for lewd conduct in public which does not require registration as a sex offender,” a misdemeanor which was later dismissed pursuant to PC 1203.4. He was never required to register under section PC 290. Attorney Letarte quoted the following two relevant passages from the 1987 trial:

 (1987) Direct Examination Sgt. Carl Case testing the .30 Caliber revolver that killed the victim. This is a sergeant who is well versed in firing weapons.

Q. Describe for us how that shot felt when you fired the gun.
A. Well, I was quite surprised. I had never fired a revolver before that chambered a rifle round, and there was a quite a bit of a kick….
Q. How much of a kick did it have?
A. Well, pretty good; it was pretty good, pretty noticeable.

(1987) Direct Examination of Cheryl De Boe (one of Mr. Shaputis’ daughters)

Q. Directing your attention in 1978 did you ever hear your father speak to Annette (sister) about the allegations that she made against him?
A. No.
Q. Were you -- did you ever have occasion for your father to get in bed with you?
A. Did I ever have an occasion?
Q. Yes.
A. Yes, when he got the wrong room. Yes.
Q. Tell me what year that was as best you remember?
A. ’75.
Q. What happened?
A. He came into the room and got into the bed. And I said, “What are you doing in here?” and he looked confused and I said, “Get the (expletive) out of the room,” and he did.
Q. All right.  And was he drunk then?
A. Yes.
Q. And when you told him to get out, he complied with that?
A. Yes.
Q. Were you ever molested by your father?
A. No.

After deliberation the Commissioners unanimously concluded that Mr. Shaputis(**)  does not pose an unreasonable risk and found him suitable on November 1, 2016. We are now waiting for the 150 day review cycle to be completed, in hope that the Governor will take no action -- this time around!

===================================================================
* In 2006, Commissioner St. Julien, who granted parole to Mr. Shaputis pursuant to a court order stated: “I found you unsuitable in 2005 … and I think I made the right decision then [2005]…” and later in the decision Commissioner St. Julien stated: “However, today [2006] we do feel unduly burdened by this Court decision so we’re going to do the legal thing.” She then pronounced him suitable, per the court order.

** Little known facts about Mr. Shaputis. He worked many years as a foremen at the San Onofre (Nuclear plant) and traveled many weekends back and forth to San Diego, his home. On or about the day of the crime, he had worked extremely long hours and still drove home to celebrate their 23rd wedding Anniversary.  The death occurred, after they both had been heavily drinking that evening, with the victim’s blood alcohol concentration (BAC) analyzed at approximately .24, at the time of death.

Prop 57 passed: How can I help my loved one who is incarcerated? (Full or Parial Parole Hearing)

The Public Safety and Rehabilitation Act of 2016: Over the last several decades, California’s prison population exploded by 500% and prison spend over $10 billion every year. Few inmates were rehabilitated and most (non-Lifers) re-offended after release, at the tune of approximately 75%. Evidence shows that - the more inmates are rehabilitated, the less likely they are to re-offend.California is reducing overcrowding in the prisons following an Order from the United States Supreme Court in 2011. Hence, the passing of Prop. 57, among other laws.

Prop. 57 actually amends the California Constitution.  It adds section 32 to Article I of the California Constitution, which changes when an inmate is eligible for parole.   The (partial**)  text of that new constitutional section (that affect the Parole Hearing aspect) reads as follows:

Section 32 is added to Article I of the California Constitution, to read:

Sec.  32. (a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law:

(1) Parole Consideration: Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.

(A) For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.

(2) Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements.

(a) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.

Under Prop. 57, not everybody technically considered a non-violent offender would automatically be granted early release. Instead, Prop. 57 will allow offenders to gain credits for participating in rehabilitation programs, and then once these inmates carry out their full primary sentences, they could be considered for parole. Whether these non-violent offenders are actually granted parole is up to the Board of Parole Hearings (BPH).


Encourage your Loved ones to participate in all the rehabilitation programs available, even through Correspondence courses or writing Book Reports for self-help. The Parole Board will be looking for Self-introspection on the part of the inmate,  insight into his crime, remorse [that shows they understand the impact of their crime], Institutional Behavior, among other factors.
 
BPH PROCESSES:  It is unclear at this time if there will be a Full Parole Suitability Hearing for Prop. 57 or only a Partial Hearing, meaning a "paper review" process similar to the previous NON-VIOLENT, NON-SEX-REGISTRANT, SECOND-STRIKE (NVSS) program. As a reminder with the NVSS program, inmates were screened for eligibility at their annual unit classification committee review for NVSS qualification, as determined by CDCR case records personnel. Back then, the (2014) Three Judge Panel in the Plata/Coleman class action lawsuit had ordered  (CDCR) to create and implement “a new parole determination process through which non-violent second-strikers would be eligible for parole consideration".

We believe a full Parole Hearing should be implemented by BPH for Prop. 57, but given the early publishing of this BLOG - BPH has not had a chance to implement the Prop. 57  process - STAY TUNE!

If your Loved one is provided a CDCR Letter (General Chrono CDC-128) that they qualify to receive a Full or Partial Parole Suitability Hearing under Prop. 57 contact (619-233-3688)  the Law Office of Diane Letarte for preparation to either Parole Suitability Hearing (Full or Partial).  On the other hand, if  at some future time your Loved one is deemed "disqualified" under Prop. 57, we can be retained to provide an analysis under Prop. 57 including mailing a written Opinion Letter to your Loved One. Subsequently if there is a disagreement as to the "qualification" of  Prop. 57, it can be litigated in Court, if need be.

NOTE for “Three Strikes” : It is unclear (at the writing of this Blog) whether an argument can be made that Prop. 57 applies  to “Two Strikes or “Three Strikes” cases, especially if 3x cases are considered  "enhancements" and not Primary sentences.

=================================
** Prop. 57 also allows a Juvenile Court Judge to decide whether or not a minor should be prosecuted as an adult - not the Prosecutor (i.e., DA). Evidence shows that minors who remain under the Juvenile Court Supervision are less likely to commit new crimes. In contrast to the old way of being sentenced as an Adult and sent to the Adult prisons at the direction of the Prosecutor (DA) vs the Judge's discretion.

Proposition 57 : VOTE YES. Non-Violent Criminals & Juvenile Court Trial Requirements

The California Parole for Non-Violent Criminals and Juvenile Court Trial Requirements Initiative, also known as Proposition 57, will be on the November 8, 2016, ballot in California as a combined initiated constitutional amendment and state statute. The measure was developed by Gov. Jerry Brown (D).
Its essence is to provide an incentive since Inmates use credits to reduce time spent in prison.
We all know Proposition 57 is partly another response to the 2009 federal order mandating that California reduces its prison population numbers, like the Prop 47 passage in 2014 [which reduced non-violent, non-serious crimes to misdemeanors].

Prop 57 allows parole consideration for nonviolent felons. Authorizes sentence credits for rehabilitation, good behavior, and education. Provides juvenile court Judge decides whether juvenile (as young as 14 years old) will be prosecuted as adult, not the prosecutors (i.e. District Attorneys).

LIFERS: Keep in mind that Prop 57 will not apply directly to Lifer since their crimes are almost without exception considered serious and violent. However, we believe this an action that increases sentence reform and we support its passage. 


A YES vote on this measure means: Certain state prison inmates convicted of nonviolent felony offenses would be considered for release earlier than otherwise. The state prison system could award additional sentencing credits to inmates for good behavior and approved rehabilitative or educational achievements. Youths must have a hearing in juvenile court before they could be transferred to adult court.

   The long-form ballot SUMMARY is as follows:

• “Allows parole consideration for persons convicted of nonviolent felonies, upon completion of prison term for their primary offense as defined.
• Authorizes Department of Corrections and Rehabilitation to award sentence credits for rehabilitation, good behavior, or educational achievements.
• Requires Department of Corrections and Rehabilitation to adopt regulations to implement new parole and sentence credit provisions and certifies they enhance public safety.
• Provides juvenile court judges shall make determination, upon prosecutor motion, whether juveniles age 14 and older should be prosecuted and sentenced as adults for specified offenses.”

 If it passes, then we need to stay tune on how the California Department of Corrections and Rehabilitation (CDCR) will actually enact Prop 57  via their Regulations.


  For additional information on Prop 57 contact:

          James Harrison

Remcho, Johansen and Purcell, LLP

1901 Harrison Street,
Suite 1550

Oakland, CA 94612

(510) 346-6200

Info@SafetyandRehabilitation.com

www.Vote4Prop57.com

Johnson v. Shaffer settlement: meaningful appeal to Lifer Psych evaluations (CRAs)

This Post is a SHOUT OUT to all Criminal Defense Attorneys, Advocates for Lifers, and Families -->  to assist  Attorney Keith Wattley with his current Objections to Board of Parole Hearings (BPH) erroneously implementing some key provisions of the  Johnson v. Shaffer  Settlement in their Proposed Regulations.

WAYS to HELP: Weigh in however you can, including writing and/or showing up at the September 2016 BPH monthly meeting in Sacramento - BPH's headquarter. Fastest is by  emailing a letter (sample below) to BPHEXE.BRDMEETING@cdcr.ca.gov or faxing the letter to (916) 322-2475.

    The Board (BPH) has submitted for the Commissioners' approval at next (2016) September's Executive Meeting a draft of its Proposed Revisions to Title 15 of the Ca. Code of Regulations section 2240 (i.e. 15 CCR 2240, draft included below.) One of the key provisions of the Johnson v. Shaffer Settlement was the requirement that BPH establish a meaningful appeal process to address errors in the Psychological reports (i.e. Comprehensive Risk Assessment - CRA) used at the Parole Suitability Hearings.  These Regulations (15 CCR 2240)  were partially the subject of the Johnson v. Shaffer settlement. Unfortunately, BPH's proposed draft does not allow for these safeguard provisions. Please join Attorney Keith Wattley in his Objections to the Proposed Regulation changes.

Attorney Keith Wattley states: 

There are many problems with this draft, but here are two of the worst:

• BPH refuse to record psych interviews under any circumstance, even though the federal court observed that recording psych interviews would be the easiest way to ensure a fair appeals process. We argued that the recording should be at the inmate’s discretion (some may not want it), and the recording would only be transcribed if there's later a dispute.  Their Chief Psychologist is under oath admitting there’s no clinical reason not to record. The Board refuses to do it solely because they don’t want to pay for it. 
  
• BPH's proposed definition of an “error” excludes too much, including the scenario where the CRA attributes statements to your clients that she or he did not make.  This makes completely un-reviewable one of the most common grievances with these Psychological reports.
  
• BPH refuses to require CRAs be provided to the Criminal defense Attorney at least 65 days before scheduled Parole hearings in order to ensure there's time to resolve disputes.  They want no deadline earlier than 10 days before the Parole hearing, which is ridiculous.
  
• They didn't even tell Attorney Wattley (class counsel for 10,000) that they were submitting this draft to the commissioners originally in August 2016, and didn't show it to class counsel before hand. 

===================SAMPLE letter below ====================

Jennifer Shaffer
Executive Officer
PO Box 4036
Sacramento, CA 94812-4036

Dear Ms. Shaffer:

    On behalf of [Organization], I write to oppose the proposed regulations regarding Comprehensive Risk Assessments, scheduled for discussion on the upcoming September 2016.

    First, we believe these regulations should provide for recording and transcription of clinical interviews – if not for all prisoners, at least for those who opt to have their interviews recorded.This is vital to ensure that the CRA process is transparent and fair. Since the current draft does not include such a provision, we find it inadequate.

    Second, we believe these regulations should allow prisoners to address a far broader range of “factual errors.”As drafted, the regulations would screen out too many legitimate and important objections – in particular, objections to a clinician’s errors in reporting on statements that a prisoner has made in an interview.

    Furthermore, we believe these regulations should provide a meaningful timeline for the appeals process. As drafted, the regulations would screen out a prisoner’s appeal of a CRA if not raised at least 30 days before a hearing. However, the Board is not held to any timeline for providing a CRA in the first place. Nor is the Board required to act on a timely appeal until 10 days before the hearing. This is unacceptable.

    Finally, [add any other concerns you may have.....here ]

    For these reasons, we strongly oppose the proposed draft regulations. We urge you to take these regulations off the agenda and to address all the problems noted before voting on any revisions.

    Sincerely,
=========================================================

The 4-page draft regulations are included below and available on the Board's agenda for the September week's meeting. 

 

 

 

 

 

 

 

 

 

June 2016 ECC LIFER ANNUAL BBQ - Fun was had by ALL - Congrats Keith

"Red" and Renegade Attorney

Eccher Consulting Company (ECC, Gary "Red" Eccher & Keith Chandler) hosted the Lifer Celebration. All lifers, families, and friends were invited to the Fourth Annual Lifer Celebration at Boisseranc Park 7520 Dale St. Buena Park, CA 90620

Atty Letarte, Mrs. Hales, friend, "Doc" Hales

Yolanda Navarro,   Keith Chandler

                     

                                

 Can you Find your Lifer?

2016 Lifer Group photo

Veneessa Nelson (LSA), Atty Debbie Page, Sister Mary Sean (PREP), Atty Diane Letarte (in pink)

 

Attorney Debbie Page and Diane Letarte was spotted among the Lifers and many of their released Clients!

  

Below are a few Photos of Atty Letarte's released Clients:

 Better known as In Re Vicks standing tall between Yolanda Navarro, legal assistant to Attorney Diane Letarte (pinky)
--------------------------->>>>>

Yolanda Navarro,   Keith Chandler   (New Law School Graduate!),    Atty Diane Letarte

 A BIG CONGRATULATIONS TO KEITH CHANDLER

 for his HARD WORK to GRADUATE FROM LAW SCHOOL!!!

People v. Berg (5/12/2016) Affirms that JLWOP (under 18) need "Miller" Youth Factor relief

More and more progress is being done in developing Case Law that allows a Juvenile LWOP (currently under 18 y.o.) to file a Miller Petition to have his/her Sentence re-evaluated by the Trial Court by taking into consideration all the Hallmark features of a Youth Offender.   The current Senate Bill 9 (SB9) is valid for Youth Offender that were under the age of 18 years old. NOTE: Stay tune..the JLWOP maybe expanded via legislature to increase the age of the youth offenders!

We are seeing successful stories that some LWOP inmates are getting their chance at Parole via the Parole Suitability Hearing Process, once they are re-sentence as Lifers with the Possibility of Parole.

There are 2 Petition that can be filed in the Court to recall an LWOP sentence; 1) A Miller v. Alabama Petition and 2) SB9 Petition to recall of LWOP sentence under PC Section 1170 ((d)(2).

It is apparent that the Court are really swayed by Case Law arguments made in a Miller v Alabama Petition more so than the SB9 Senate Bill.  See below:



The People v. Berg  ____ Cal.App.4th ____, 2016 (D068557) Court explicitly concluded “that the possibility that an LWOP sentence would later be recalled and a new sentence imposed under section 1170, subdivision (d)(2) did not cure the defect in the original sentence.”


Court of Appeal, Fourth District, Division 1, California.
The PEOPLE, Plaintiff and Appellant, v. Jason A. BERG, Defendant and Respondent.
      Decided: May 12, 2016
 
INTRODUCTION:  (Trial Court decision to grant petition):
In December 2014, Berg filed a petition for habeas corpus and a supporting brief in which he contended that the sentencing court's imposition of an LWOP sentence for a crime that he committed as a juvenile constituted a violation of the prohibition against cruel and unusual punishment contained in the Eighth Amendment of the United States Constitution under Miller and Gutierrez.  Berg supported his petition with relevant portions of the record in the underlying criminal case.

After the People filed an informal response and Berg filed a reply, the trial court issued an order to show cause as to why Berg's sentence should not be vacated and a resentencing hearing held.

The People filed a return and a supporting brief in which they argued that the sentencing court had given “full consideration to the relevant youth-related factors applicable to [Berg],” and contended that “further guidance by Miller and Gutierrez decisions would not have altered the court's sentencing choice.”  In the alternative, the People argued that Miller should not be applied retroactively to Berg's case, which was final at the time Miller was decided.

After Berg filed a denial and the habeas court held a hearing on the petition, the court issued an order granting the petition.  In its order granting the petition, the habeas court concluded that “current Eighth Amendment jurisprudence regarding the imposition of life sentences on juvenile offenders must be applied retroactively to persons serving actual or functional LWOP sentences.”  The habeas court further concluded that the sentencing court's statement of reasons for imposing an LWOP sentence on Berg did not comport with the requirements of Miller.  The court ordered “that a writ of habeas corpus be issued;  that [Berg's] sentence of LWOP be vacated;  and that the matter be set for re-sentencing in the Superior Court.”


COURT OF APPEAL:
The (DA) People appeal  the trial court's order granting Berg's petition for habeas corpus.
The Summary arguments were 1) Miller does not apply retroactively 2) trial court complied with Miller and Gutierrez 3) Section 1170, subdivision (d)(2) provides an adequate statutory remedy for Miller error.

The Court of Appeal (COA) disagreed with all 3 arguments put forth by the People (DA) and concluded
1) Miller does apply retroactively, 2) Trial Court did not comply with the Miller factors and 3) while section 1170, subdivision (d)(2) provides a statutory procedure by which some defendants serving LWOP sentences for crimes committed as juveniles may obtain resentencing, we disagree with the Kirchner court's conclusion that the statute provides such defendants with “all the rights set forth in Miller and Montgomery.”  (Kirchner, supra, 244 Cal.App.4th at p. 1416.)  We NOW conclude that section 1170, subdivision (d)(2) does not provide an adequate statutory remedy for Miller error.



DISPOSITION:
The trial court's order granting Berg's petition for writ of habeas corpus is affirmed. The COA 4th, Div One, doubled back on their Kirchmer  Decision by stating: "I concur in the opinion and write separately to acknowledge that after considerable reflection, although I signed the opinion in In re Kirchner (2016) 244 Cal.App.4th 1398, I agree with the opinion in this case including its provisions that are inconsistent with In re Kirchner."



Thanks to Findlaw website:
The full Case can be viewed at  Findlaw

In re JORGE A. GOMEZ, Court Grants Relief for SHU Inmate Wrongfully Issued a CDC-115 for 2013 Hunger Strike

 

In re Jorge A. Gomez,  Court Of Appeal, 1st Appellate, Div. 2

(No.A142470    (Del Norte County Super. Ct. No. 145020)

 

BACKGROUND facts:

Jorge Gomez had spent over 10 years in Pelican Bay State Prison’s Security Housing 

Unit (SHU). In early July 2013, he participated in the Hunger strike to protest torturous and inhumane conditions at Pelican Bay’s SHU and at other isolation and segregation units throughout the state. Over 30,000 inmates participated at its height, with many refusing

food for as long as two months.

 

CDCR struck back, on July 16, 2013, by issuing Gomez,a Rules Violation Report 

(aka CDC-115). The same fate fell on many other inmates  who had gone to the extreme

 length of starving themselves to peacefully call attention to their torture.

 

When CDCR was cornered to defend their position it was clear that no one was put in danger during this peaceful Hunger Strike.

 The Court states: “None of [Respondents’] contentions indicate that the facility, outside community or another person was endangered, i.e., put in danger or peril of harm or loss, 

nor do they indicate that there was a breakdown of order in any aspect of the prison..."

 

DISPOSITION:

Gomez’s petition is granted. Respondent is ordered to reverse the [CDC-115] disciplinary

ruling that Gomez violated section 3005(a), thereby committing a serious rules violation,restore Gomez’s 90 days of conduct credits and expunge all references to his disciplinarycharge from his central file

 

PUBLICATION:

The case was finally published this month (May 2016), with strong Opposition by the Attorney General (representing the prison's interest). Thus far,  the Published Opinion will assist countless prisoners who wrongfully received RVRs  (CDC-115s) in connection with their participation in the 2013 Prisoner Hunger Strike.

 

PAROLE SUITABILITY HEARING IMPACT: This is a huge win for the Lifers and/or DSL (Youth Offenders)  that will be going to their Parole Hearing post-GOMEZ, if they were wrongfully issued a CDC-115. We all know that realistically if an inmate has  a fighting chance of being found suitable he should have minimally 3 to 5 years disciplinary free. If the CDC-115 was for a Hunger Strike it should be argued that participation in a peaceful demonstration, does not make him an "unreasonable threat to society" if released on parole. Of course, all the other Suitability factors must be present BUT FOR the Hunger Strike CDC-115. 

 

 

 

The full opinion is available at http://www.courts.ca.gov/opinions/documents/A142470.PDF.

Attorney Letarte Invited to speak to Lifers at CSP-SAC

 Attorney Diane T. Letarte invited to speak Saturday June 4, 2016 to Lifer group at California State Prison,   Sacramento (CSP-SAC) a.k.a. New Folsom in Represa, CA.

NOTE:** If your Loved one is incarcerated at CSP-SAC, make sure they ask their Correctional Counselor (CO) to give them a DUCAT to attend the Free 6/4/2016 seminar on how to prepare for their Parole Suitability Hearing. If they are not housed at CSP-SAC, you may consider buying them the Parole Packet  (and mailing it to them) to assist them in preparing for the parole hearing - on their own.  

The Law Office of Diane T. Letarte is a community based law firm located in San Diego, California. The law office serves the 35 State Prisons in the entire State of California for Lifer Parole Suitability Hearings, including Youth and Elderly hearings. She can be reached at 619-233-3688. She has dedicated the last 15 years of her practice to assist Lifers. She has been invited to different venue to speak including the Central California Appellate Program (CCAP), the Family of the Incarcerated, and several prisons. Her last prison presentation was with her whole staff at the women prison in Corona:  CIW.  

The Renegade Attorney is a Wild Card in the Post-Conviction legal arena and the Parole Suitability Administrative Hearings. Her client testimonials can be reviewed at Attorney Letarte's Testimonial Board. She comes up with creative arguments and does not always play by the "rule" but then neither does CDCR!  Every advantage counts and can make the difference between a Denial or a Grant of Parole.

Attorney Letarte's  Education (below) speaks for itself, including earning a 3rd Master's degree: Master of Science in Forensic Psychology (2011) to have an edge arguing incorrect conclusions from BPH's  Forensic Assessment Division (FAD) psychologists Risk Assessment evaluation, during the Parole Suitability Hearings.

•  2011  M.S.     Forensic Psychology, Walden University, MN
•  2003  LL.M.   Criminal, University of San Diego Law, CA
•  1996  J.D.     Thomas Jefferson, School of Law, SD, CA and  Cambridge University,  England
•  1991  M.B.A. University of Redlands, Redlands, CA
•  1979  B.S.     Computer Science, Florida Atlantic Univ. FL 
   1976  A.A.       Associate of Arts, Palm Bch Jr. College, FL
   

The CSP-SAC Lifer Group (and Teacher)  invited Attorney Letarte to provide information and insight into the Parole Suitability Hearing, at the prison. She has accepted the invitation from CDCR (CSP-SAC) and will be flying to Sacramento the week of May 30, 2016 for the June 4th, 2016 free seminar.

Lifer PAROLE PACKET Preparation for all BPH Parole Hearings (& Youth SB261 or Elderly)

This BLOG (an unusual posting) contains a quick summary of  our NEW Parole Packet that was compiled by Attorney  Diane T. Letarte (619-233-3688 or 888-200-8385) and used with her clients (for many years) at the Parole Suitability Hearings. Many phone calls have come in to our office inquiring about the Parole Packet that we use. We finally can offer this Parole Packet for $59 and downloadable Immediately from Attorney Letarte's Website under Legal Services search for Lifer Parole Packet immediate download. The packet contains over 10 different SAMPLE support letters, including a Sample for Youth Offender Parole Hearing (YOPH)

NOTE: Part of the Proceeds ($) from the sales of the Parole Packet are DONATED to The Francisco Homes: a transitional housing for Lifers, which in turn will help other Lifers. Francisco Homes can be reached at info@thefranciscohomes.org or by Phone at (323) 293-1111.

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Attorney Letarte accumulated her experience (15+ years) by doing well over 1000+ Parole Hearings in front of many different Governor Appointed Commissioners. This Parole Packet contains several sample Support Letters, among other Resources such as Transitional Home Contacts. In addition, it offers a Table of Contents (TOC) presentation format, that the inmate can use at their Parole Hearing. The Format should streamline the Post-Conviction factors presented to the Commissioners including self-help classes, Education,  programming, Apology Letters, Relapse Prevention Plan, among others. All the achievements earned can be presented in an abbreviated format to fit in the 2 - 3 hour Parole Suitability Hearing.

The Relapse Prevention Plans (RPP) SAMPLES allow a framework for 1) substance abuse avoidance as well as 2) criminal conduct avoidance,  whichever bad behavior that needs to be identified via triggers (red flag, warning signs) before it re-occurs. The RPP should provide an action plan the inmate is ready to execute by using the Law of Replacement principles to avoid the need for illegal substance usage or criminal behavior.

The Parole Packet  can also be "snail" mail to the inmate because the TOC (blank forms) can be filled out by hand (yep! the old fashion way.) If you only want the sample letters portion of the Packet, then see Product ($9.99) entitled "SAMPLE LETTERs"  or search the Key word SAMPLE  in our RenegadeAttorney,com website.

Sometimes a GOOD PRESENTATION and great Support Letters (at a Parole Hearing) makes a difference between a Grant of Parole and a 3-year Denial.  The Packet makes a Positive Statement about the inmates Readiness to re-integrate in the Free Community.

Gilman v. Brown (2/22/2016): Reverse the District Crt & finds Marsy's Law P9 & P89 still valid.

The long awaited GILMAN Decision from the Oral Argument that presented last Summer 2015.
See GILMAN  (2/22/2016)  Decision at Attorney Letarte's website

Gilman v. Brown (2/22/2016)     2016 U.S. App. LEXIS 3035
Plaintiff: (The Inmates) Monica Knoxx (argued), et al. She presented a very good Oral argument last year at the 9th Circuit in San Francisco, California;  WATCH 2015  Oral argument.

Defendants: (The People) Defendant: Christopher John Rench (argued) and Maria G. Chan, Deputy Attorneys General, California Department of Justice, Sacramento, California, et al.

Circuit Judges were Lawrence K. Karlton, Senior District Judge, Presiding Before: Susan P. Graber, Consuelo M. Callahan, and Carlos T. Bea. 

Short Summary: Changes to California's parole system through Prop 89 and Prop 9 did not result in ex post facto violations.Thus, Marsys' Law (aka Prop 9) is still valid law as is P89, the 1988 Governor's veto power to reverse the Board of Parole Hearing's decision. 

Prior District Court's Bench Trial was REVERSED:
After a bench trial, the district court found in favor of the plaintiffs. As to the class members who were convicted of crimes committed before the passage of Proposition 89, the district court enjoined the Governor from imposing a longer sentence than that required by application of the same factors the Board of Parole Hearings is required to consider. The district court further ordered the Board of Parole Hearings, after denying a class member parole, to schedule that inmate’s next parole hearing according to the deferral
periods in place before the passage of Proposition 9.

BOTTOM LINE: The 9th Circuit Court reversed the District Court's decision that was previously favorable to the inmates. The panel reversed the district court’s bench trial judgment and remanded with instructions to enter judgment for the State of California in an action brought by California inmates under 42 U.S.C. § 1983 seeking to stop the application of Propositions 89 and 9, which had amended the State’s Constitution and Penal Code as it relates to the parole system.

PROP 9: MARSY'S LAW
The 9th Circuit Decision  goes through some great mental gymnastic to state that the District Court applied the wrong standard, it committed legal error, and the resulting factual findings are clearly erroneous. Basically stating that the statistics and anecdotes derived from the Rutherford litigation, are irrelevant in part because those (pre-prop9) inmates could have been granted a hearing via the PTA procedure. 9th Circuit goes on to say that any suggestion that Proposition 9 created a significant risk of lengthened incarceration for those inmates is thus just conjectural!

PROP 89: GOVERNOR'S VETO POWER
The 9th Cir. states that the district court did not point to evidence that Governors had reversed the Board other than on the basis of the same factors which the parole authority is required to consider.  Cal. Const. art. V, § 8(b). Nor did Gilman offer evidence showing that he would have received parole before the enactment of Proposition 89, and that Proposition 89 changed that result. Therefore, Proposition 89 remains only a transfer of decision making power, which does not violate the Ex Post Facto Clause.

STAY TUNED: After communication with Monica Knox  (Federal Defender for Inmates)- it appears she will petition for a rehearing En Banc on both the P9 and P89..... and possibly Appeal to the U.S. Supreme Court on any of the viable claims.        GO get them Monica!

What are SB 261 Notices (CDC-128): ELIGIBILITY for Youth Offender Parole Hearing

Attorney Letarte's Law Office (619-233-3688) is continuously getting questions (letters and phone calls) from Lifers (ISL) and  from long-term Determinate (DSL) sentenced inmates as well as their Family Members and Friends regarding the SB 261  inmate NOTICE (CDC-128).  CDCR Counselors are not always providing an explanation to the inmate regarding the meaning of the Notices. Hopefully this BLOG will answer some questions.

What the Heck does the SB 261 Notice (CDC-128) memo mean?

If an inmate receives a NOTICE indicating that s/he qualifies for a Youth Offender Parole Hearing (YOPH), it is NOT an indication that they will be going to a Parole Hearing - right away. There are several factors to look for in a SB261 Qualification, the age is the primary determinate but NOT the only trigger to schedule a parole hearing. REMEMBER: Under the YOPH laws minimum terms must be served, for both ISL and DSL. (see Attorney Letarte's inmate Blog on SB260)  

Two key terms are the Minimum Eligible Parole Date (MEPD) and the Youth Parole Eligibility Date (YPED):
YPED =  Minimum time served, based on SB261 law.
MEPD =  Minimum time served (Lifers), based on Laws @ time of Life offense.

YPED will trump the MEPD and MAY bring the (YOPH) inmate to a parole hearing before the MEPD.

SB 519 (companion to SB261) require** that :
  a) ISL inmates are to be provide a hearing before  December 31, 2017
  b) DSL inmates are to be provided a hearing before December 31, 2021
 
** If the inmate become newly eligible for a parole hearing for the first time on January 1, 2016, as a result of   SB261 (i.e. offense committed under 23 y.o.)  In plain English it means --> those inmate who have met the Minimum served requirements, will have a hearing on or before the date stated above.

Parole Hearings vs. Consultation Hearings (aka Doc Hearings)

Some inmates are getting confused between a Parole Hearing and a Consultation Hearing. A Consultation Hearing is required and must be completed usually within a certain time frame.Consultations are held during the sixth year prior to the inmate’s minimum eligible parole date (MEPD), youth parole eligibility date (YPED), or elderly parole eligibility date (EPED), whichever occurs first. (Pen.Code §3041(a).)

 
 Below is a short definition of the 2 processes:

PAROLE SUITABILITY HEARINGS:
 All Lifer (ISL) inmates are required to go through the Board Of  Parole Hearings (BPH) to determine if they are Suitable to be release in the Free community. Lifers have no guarantee of a release UNLESS they are granted Parole by the Commissioners at a hearing. This is an Administrative hearings, normally 2 to 3 Commissioners form the hearing Panel. The inmate is usually present (at the hearing) with their Defense Attorney and the DA may (or not) attend in-person, via telephone, or video conference. Victims or their next of kin may attend the hearing and usually oppose the release. The inmate's family are not usually allowed to attend UNLESS they were the victim of the commitment offense. After 2-4 hours of discussions with evidence presented during the hearing, the Commissioner will deliberate and provide a Decisions at the end of the Hearing whether to Grant or Deny Parole. If not granted Parole then, the Denial is based on Marsy's law, thus ranging from 3, 5, 7, 10, 15 years.

 
CONSULTATION HEARINGS: 
On the other hand, a Consultation Hearing  is attended by only one (1) Commissioner and the inmate, no attorneys are allowed. It is not a process to grant or deny parole but only a process to provide information to the inmate about the Parole Process. The Board (BPH) is required to provide the inmate information about the parole hearing process, legal factors relevant to his or her suitability or unsuitability for parole, and individualized recommendations for the inmate regarding his or her work assignments, rehabilitative programs, and institutional behavior. (Pen. Code §3041(a).)

BOTTOM LINE: If the inmate is going to a Consultation Hearing he may hire an attorney for a private attorney Consultation BEFORE attending the Consultation hearing but the Attorney is not allowed at the Commissioner Consultation with the inmate. The attorney is definitely required at the Parole Hearing, but it is still the option of the inmate to waive Attorney representation at the Parole Hearing. It is NOT recommended to go to a Parole Hearing without an experienced Parole Hearing Attorney. 


If you have question -->  Attorney Letarte (619-233-3688) has been doing Parole Hearing Representation for over 15 years and is well versed in all the new laws on same.