Friday, October 12, 2018

IN RE PALMER, No. A147177 (Cal. App. 9/13/2018) ----- " Great weight" for youth factors defined

  IN RE PALMER, No. A147177 ( 9/13/18)  - Published Opinion

A BIG win for all the YOUTH OFFENDERS that will be in front of the BOARD for their Youth Offender Parole Hearing.

This is published opinion issued last month by the First District Court of Appeal on what it means to give “great weight” to the youth offender factors at a youth offender parole hearing, and finding that the Board’s lip service to the youth offender factors in this case was insufficient. 

The Court holds that “to give ‘great weight’ to the youth offender factors as required under section 4801, subdivision (c), the Board must accept those factors as indicating suitability for release on parole absent substantial evidence of countervailing considerations indicating unsuitability.”  It also holds that the Board is “required to satisfactorily explain why a youth offender is not entitled to a finding of suitability for release despite the presence of the statutory youth offender factors to which the Board is required to give ‘great weight.’” 

In 1988, when he was 17 years old, petitioner William Palmer pled guilty to
kidnapping for robbery. Sentenced to life with the possibility of parole, Palmer has
appeared before the Board of Parole Hearings (Board) 10 times, without success. At the
most recent hearing, on June 2, 2015, the Board denied parole and deferred Palmer’s next
parole hearing for five years.

Palmer was raised primarily by his mother, with only sporadic contact with his
father. At some point, his family moved from a low income area to one with
“predominantly wealthier kids”; Palmer related that his self-esteem suffered and he
committed crimes and used drugs in order to be accepted by his peers, “have the things
that they had” and “do the things they were doing.” He admitted his first offense, driving
without a license, in July 1985. In February 1986, he admitted a violation of Penal Code section 288a, a felony, for his conduct with three minors.2 He was placed on probation, which he then violated with two charges of robbery, burglary, and attempted burglary.

Palmer committed his life offense in 1988. His face covered with a ski mask,
Palmer lay in wait in a parking garage in an apartment complex with which he was
familiar (having previously committed burglaries there). He had taken a bus to this
location because he “knew rich people lived there” Brandishing an unloaded .357
revolver he had stolen in a previous burglary, Palmer confronted Randy Compton, and
ordered him to turn over his wallet. Compton said he did not have one, and Palmer “spur
of the moment” decided to ask if he had a bank card; Compton said he did, and Palmer
ordered him to drive to an ATM and withdraw $200. When they arrived at the bank,
Compton, an off-duty police officer, drew his gun and fired 15 rounds at Palmer, who
was hit in the knee and fled. Palmer was captured shortly thereafter, waived his Miranda
rights, and confessed to the crime in an account fully corroborated by Compton.

During his 30 years in prison, Palmer, a high school dropout, obtained a General
Education Diploma (GED) and, in 2007 an Associate of Arts Degree from Palo Verde
College. The deputy commissioner at the 2015 hearing commented that Palmer had done
a “really good job” with his educational upgrade. Palmer learned to paint in prison,
joined “Arts in Corrections,” and has become an accomplished artist: He has sold some
of his art work and has painted three murals on the prison grounds. one of which the
deputy commissioner described as “very beautiful,” and another of which the presiding
commissioner described as “very good work.”

At the parole hearing preceding the one now before us, on April 11, 2013, the
Board denied parole primarily because of Palmer’s disciplinary violations in prison,
which were described as reflecting “serious misconduct while incarcerated.” The denial
was for five years, but Palmer was successful in having that time advanced. At the
present hearing on June 2, 2015, Palmer acknowledged that while he was not happy about
the five-year denial in 2013, he “deserved it” because he had “two 115s” and “knew that
[he] still had some work to do.” He agreed with the deputy commissioner’s assessment
that the 2013 panel “kind of nailed it” in seeing an “ongoing pattern” of Palmer
minimizing his prior criminality and failing to remain free of disciplinary violations, and
having not “internalized any of the concepts of self-help.” Palmer acknowledged that he
did not see this in 2013, and saw the Board as an adversary. He explained that it was
only recently, with the help of Newbill, that he came to realize “[w]e [are] on the same
team. We want to make sure that the public is safe from me, from my decision making.”

Palmer’s claim is based on the 2013 enactment of Senate Bill No. 260, which
added provisions to the Penal Code relating to parole hearings for “youth offenders” who
were 18 years of age or younger at the time of their controlling offense (i.e., that for
which the longest period of imprisonment was imposed). (Stats. 2013, ch. 312, §§ 3046,
subd. (c), 3051, 4801, subd. (c).) Later amendments raised the age of a “youth offender”
first to 23 years of age or less and then to 25 years of age or less. (Stats. 2015, ch. 471,
§ 1; Stats. 2017, ch. 674, §§ 1, 2.)

Section 4801 provides that the Board “shall give great weight to the diminished
culpability of juveniles as compared to adults, the hallmark features of youth, and
subsequent growth and increased maturity of the prisoner in accordance with relevant
case law.” (§ 4801, subd. (c).) Similarly, section 3051 provides that any psychological
evaluations and risk assessment instruments used by the Board “shall take into
consideration the diminished culpability of youth as compared to adults, the hallmark
features of youth, and any subsequent growth and increased maturity of the individual.”
(§ 3051, subd. (f)(1).)

......More DISCUSSION  omitted - See full OPINION below or here

Finally, the Board maintains that it “gave great weight to Palmer’s youth factors
when determining his suitability, and referenced this obligation no fewer than 10 times.”
As the Board sees it, Palmer misconstrues the youth offender statutes “as requiring the
Board to categorically find any juvenile offender suitable for parole simply based on his age when he committed the life crime. Palmer errs because considering the youth factors
does not diminish the Board’s discretion to deny parole when the record demonstrates
that the inmate would pose a current, unreasonable risk to public safety.”

The Board’s contentions fail to address the meaning of the statutory phrase “great
weight,” and treat the youth offender factors as no more significant than the regulatory
and other factors it conventionally relies upon to determine whether a life prisoner is
suitable for release. The Board’s argument that it “is the sole decisionmaker that
considers and weighs the relevant factors under the current law” ignores the fact that the
direction to not only consider but accord “great weight” to the youth factors comes from
the Legislature. The Legislature “is thus accorded the broadest discretion possible in
enacting penal statutes and in specifying punishment for crime.” (In re Lynch (1972) 8
Cal.3d 410, 414.) “The efficacy of any sentencing system cannot be assessed absent
agreement on the purposes and objectives of the penal system. And the responsibility for
making these fundamental choices and implementing them lies with the legislature.”
(Harmelin v. Michigan (1991) 501 U.S. 957, 998-999; accord, Solem v. Helm (1983) 463
U.S. 277, 290 [“[r]eviewing courts . . . should grant substantial deference to the broad
authority that legislatures necessarily possess in determining types and limits of
punishments for crimes”].) Here, while otherwise leaving it to the Board to enumerate and determine the relative importance of factors bearing on suitability for parole, the
Legislature has singled out the youth factors in a rare, express directive as to the Board’s
exercise of discretion.

Untenably, the Board treats the youth offender statutes as merely an exhortation
for leniency, placing no limitation on the Board’s unfettered discretion to decide whether
a youthful offender remains an unreasonable risk of danger to society if released from
prison and requiring only that the prisoner’s status as a youth offender be acknowledged
for the record and taken into account in some undefined fashion. Except for the repetition
of that acknowledgment, the transcript of the “youth offender hearing” conducted in the
present case is not materially different from those of the parole hearings conducted by the
Board for adult offenders.

The Board’s published statistics reflect comparatively few youth offenders being granted parole, at rates very similar to those for adult offenders, which raises some question whether “great weight” is being given to the statutory youth offender factors. And a recent empirical study suggests that the “great weight” mandate is not functioning to focus the Board on the youth offender factors, while variables that do not appear related to growth and maturity have a strong impact.

The chief flaw in the Board’s view of the youth offender factors is the Board’s
failure to appreciate that they serve a legislative purpose very different from that of the
regulatory and other factors the Board conventionally employs to determine whether a
prisoner is suitable for release.
The regulatory factors tending to show suitability and
unsuitability for release (Regs., §§ 2281, subd. (c)(d), 2402, subd. (c)(d)), and the non-regulatory factors that may also be used for that purpose (such as “insight” into the
commitment offense or the lack thereof (see In re Shaputis, supra, 53 Cal.4th at pp. 218-
219), include circumstances predating, relating to and postdating the life crime, but
because the critical question is whether the inmate currently presents a risk to public
safety, the focus is largely on postconviction circumstances. Two of the three youth
factors, however—the “diminished culpability of youth offenders compared to that of
adults” and “the hallmark features of youth”—look backward to the time when the life
crime was committed and thus specifically relate to the constitutional principle of
proportionality. The necessary inquiry in proportionality analysis is into “the nature of
the offense and/or the offender, with particular regard to the degree of danger both
present to society,” (In re Lynch, supra, 8 Cal.3d at p. 425) as the punishment must fit
both the offense and the offender, with both viewed “in the concrete rather than the
abstract.” (People v. Dillon (1983) 34 Cal.3d 441, 479.)

Palmer does not, as the Board says, interpret the youth offender statutes “as
requiring the Board to categorically find any juvenile offender suitable for parole simply
based on his age when he committed the life crime.” His position, with which we agree,
is that the statutes represent a legislative determination that life prisoners who committed
their controlling offense while under the age of 26 are less culpable than those who
committed the same offense after reaching age 26—absent “substantial evidence of
countervailing considerations” (Martin, supra, 42 Cal.3d at p. 448)—should therefore be
punished less harshly than otherwise comparable adult offenders.

The Board Failed to Accord “Great Weight” to the Youth Offender Factors
Although the youth offender statutes, which became effective almost five years
ago, directed the Board to adopt new regulations regarding determinations of suitability
for youth offenders (§ 3051, subd. (e)), such regulations have not yet been added to title
15 of the California Code of Regulations. Proposed regulations were submitted to the
Board at its November 2016 executive board meeting, however, which provide a useful
framework for consideration of the Board’s decision in the present case............

The Board thus denied Palmer release, and subjected him to five more years of
imprisonment, notwithstanding the presence of almost all of the 19 factors identified by
the Board to flesh out and give meaning to the statutory youth offender factors, primarily
because three years earlier he improperly used a cell phone to contact his sister about the
death of their mother, and a year earlier he gave his girlfriend as a gift the T-shirt he used
when he painted
. This determination hardly appears to reflect “substantial evidence of
countervailing considerations”
(Martin, supra, 42 Cal.3d at p. 448) justifying a denial of
parole despite giving “great weight” to the juvenile offender factors.
On the contrary, in
the absence of any other explanation, the elevation of Palmer’s two minor violations over
all of his numerous other qualities seems to us arbitrary and capricious.

 If the Board had reason to believe Palmer’s failure to fully control his impulses
outweighed his “considered reflection” on his past life choices, his “development of prosocial
relationships” and “independence from negative impulses,” his “remorse,” his
“positive institutional conduct,” and “other evidence of rehabilitation,” it has never
explained why it believes this to be the case, much less pointed to substantial supporting evidence. As we have said, our previous review led us to observe that it was “hard to
discern” any nexus between Palmer’s recent rules violation and “present dangerousness”;
the evidence was sufficient to satisfy the “ultralenient” standard, we said, “but barely. It
is an extremely close case.” That observation was made without regard to the Board’s
consideration of the youth offender factors. Considering the Board’s statutory obligation
to give “great weight” to those factors, its decision to find Palmer unsuitable for release
despite the presence of almost all the variables the Board itself has deemed indicative of
the statutory youth offender factors cannot stand.

For the foregoing reasons, the petition is granted, the decision of the Board
denying Palmer parole is vacated, and the Board is again ordered to hold a new hearing
as soon as practicable, and in no event later than 120 days of the filing of this opinion,
and to decide whether Palmer is suitable for release on parole in a manner that comports
with this opinion.


  See full PALMER OPINION - Click  here