INFORMAL Parole Suitability Hearing Practical Tips (aka “TIPS”) and TIPS2 (for Covid19 correspondence course assistance)

Since our Law Office receives so many phone calls from inmates and Family members that want assistance (but may not be able to afford a private attorney)  in Preparing for the Initial and Subsequent Parole Hearings, we dedicated this June BLOG to describing Resources that our law office has compiled over many years, that may be useful to  inmates and/or the Family and Friends of the inmates.

Over our 20+ years of Law practice in the area of Post-Conviction (i.e. Parole Suitability Hearings) we accumulated different resources from many sources: including our clients, transitional homes, other Lifer advocates, etc..  We combined the materials in an informal PDF document that we named TIPS. TIPS was first released in 2012 (20 pages or so) or so; some older version are still floating around in the different prisons. 

The (619-233-3688) Law office of Diane T. Letarte has recently Revised the Original “TIPS” pamphlet entitled: “Parole Suitability Hearing Practical Tips”. The last Revision was created December 2020. It has grown to 50 pages or so, see Description below.  NOTE: Different then the TIPS2 packet described further below. After reading the TIPS / TIPS2 descriptions below, if you believe it may be helpful to an inmate (or a Family/Friend) - feel free to download it, print it, and US mail it to an inmate (or LO) for assistance in his/her Parole Hearing Preparation. 

The PDF files are Free but there is a DOWNLOADABLE small fee (~$6 - $9), which contributes to the website hosting of the two (2) .PDF documents entitled TIPS and TIPS2.

Below are the Descriptions of TIPS and TIPS2: 

TIPS:  informal INMATE resource: 

The TIPS document allow the inmates to better understand what they need to prepare for the Parole Hearing and what to expect from the Commissioners. The TIPS (2020 Edition, 49 pages).

TIPS is an easy to read document with a non-legalese approach to prepare the inmate on WHAT to expect  during the Parole Suitability Hearing (BPH). TIPS also contains SAMPLE Questions from both the Commissioners (BOARD) and the Prison Psychologist. The NEW 2020 Edition contains more information on COVID19 Video Hearings as well as Youth and Elderly Parole hearings as well as existing new 2020 law: (i.e SB1437 Felony Murder and AB3234, new elderly law). There are now 17 (as of 2021)  Commissioners appointed by the Governor who hear these Parole Hearings across all 35+ Prisons, where it is normally conducted. Soon to be increased in 2021-2022 by a two (2) more Commissioners to accommodate all the new Elderly Parole Hearings and Non-Violent 3rd strikers, among others.

We are including the Table of Contents below for your review.

Table of Contents  (for TIPS)

 
I.    INTRODUCTION    5
II. PART 1:THE PAROLE HEARING & CRIME    5
   What about COVID19 and BPH Video hearings?    6
   PRACTICAL TIPS:  Do I speak about “the crime”?    7
   What about INSIGHT?    9
   Board of Parole Hearings Sample Questions    12
III. PART 2:POST CONVICTION FACTORS    15
IV. PART 3: PAROLE PLAN    16
   Relapse Prevention Plan (RPP)    17
   The 10 Most Common Relapse Triggers    18
V. POST-CONVICTION PROGRESS REPORT    19
VI. PSYCHOLOGICAL Evaluation (CRA)    19
   Psychologist: Sample  Questions    21
VII. USE OF CONFIDENTIAL FILES    24
VIII. LAWRENCE,SHAPUTIS I,SHAPUTIS II    25
   A. In re Lawrence : 44 Cal. 4th 1181 (2008)    25
   B. In re Shaputis:  44 Cal. 4th 1241 (2008)    26
   C. In re Shaputis II  53 Cal.4th 192 (2011)    27
IX. LIFER LAWs (and other Laws)    28
   A. Marsy’s Law (A.K.A. Prop 9)    28
   B. Youth Offender Parole Hearings (SB260/261, AB1308, SB394)    29
   C.  Elderly Parole Hearing (60/25 And 50/20)    31
   D. SB1437 (Felony Murder) & Prop 47  &  Prop 57    33
     …. Filing the Felony-Murder Petition    34
    E. Administrative Review (AR) Of Hearings    36
X. THINGS TO REMEMBER    36
     Is It Time To Appeal To The Court?    38
XI. HOW CAN FAMILY/FRIENDS SUPPORT ME    38
   A1. Why/How To Write  Support Letters?    39
   A2. Parole Plan & Transitional Homes    40
   A3. Where Do I Send The Support Letters?    41
   A4. To Whom Do I Address The Support Letter?    41
   A5. How To Write A Job Offer Letter?    42
   A6. How Do I Get The Prison’s Address?    42
XII. GOT DENIED PAROLE - WHAT NEXT?    43
XIII. BLACK LIVES  MATTER - LA DA ends Opposition to Parole Grants    45
   A1.  LA's New DA George Gascón Ushers In Sweeping Changes, Less Punitive    Approach to Crime.    45
   A2.  Ending Use Of The 'Racist' Death Penalty    46
   A3. Lifer Parole Hearing Impact: LA DA To Support A Grant    47

 

TIPS2:  informal FAMILY resource (to help loved ones):

The TIPS2 document allow the Family/Friends to send resources (e.g. correspondence classes addresses, etc.)  to their LOs so they can better prepare for their Parole Hearing and what to expect from the Commissioners. The TIPS2 (2020 Edition, 59 pages).

From different engagements that we were invited to speak at -->  one time or another, such as Families of the Incarcerated, among other venues, we received many questions from family members and friends. The recurring theme is always asking: “ What can we do to help our Loved Ones “LO”?”.   We subsequently created a separate and informal document that we named TIPS2.

Subsequently with COVID19 and the Prison movement restrictions, inmates had little (or no) Group or individual self help classes available to increase their Rehabilitation. We enhanced TIPS2 so that  Friends/Family (on the outside) can assist their LO, by providing them with the name of correspondence classes, Books to read for Book Reports, writing appropriate support letters, etc..

The Resource pages included in this Practical informal TIPS2 packet are from all different sources that our office as acquired over several years, to assist our Long Term Offender (and Lifers) clients.   This packet contains several different topics; Book List, Book Report Sample, Correspondence classes address, Transitional Housing resources, CDCR Mental health system assistance for in-cell classes. It also contains courtesy Sample excerpts of  the ECC, LSA, and POSSE newsletters; if you chose to subscribe to them for your Loved One, please contact the Newsletter staff directly. There is a separate CLN (older California Lifer Newsletter sample) that is now published by LSA; you can also request a Subscription for CLN.  These Newsletters are published and mailed to the prisons; your LOs maybe familiar with them. We are including the Table of Contents below for your review.

  Table of Contents  (for TIPS2)

I. INTRODUCTION    4
II. Parole Hearing Guidelines    5
    Apology Letter(s)    5
    Relapse Prevention Plan (RPP)    6
    The 10 Most Common Relapse Triggers    7
    Board Of Parole Hearings - QUESTIONS    8
III. CALIFORNIA AVAILABLE NEWSLETTERS    11
   A1. LSA NEWSLETTER - SAMPLE    11
   A2. PLU MAX- POSSE NEWSLETTER - SAMPLE    20
   A3. ECC  NEWSLETTER - SAMPLE    23
   A4. CLN CA LIFER NEWSLETTER [2017 Excerpts]    25
IV. Correspondence Self-Help classes    33
   A1. PREP correspondence courses    33
   A2. LSA correspondence courses    33
   A3. MAX PLU - POSSE  correspondence courses    35
   A4. CDCR - Mental Health Delivery System (MHDS)    38
   A5. CRIMINON  correspondence courses    40
   A6. FREE  correspondence courses    43
V. BOOK LIST and BOOK REPORTS    45
    Book List    45
    Book Report - Sample    48
VI. Is It Time To Appeal To Court?    49
VII. SUPPORT LETTERS    50
   A1. Why/How To Write  Support Letters?    50
   A2. Parole Plan & Transitional Homes    51
   A3. Where Do I Send The Support Letters?    52
   A4. To Whom Do I Address The Support Letter?    53
   A5. How To Write A Job Offer Letter?    53
   A6. How Do I Get The Prison’s Address?    54
VIII. GOT DENIED PAROLE - WHAT NEXT?    56

DISCLAIMER1: 

The Law Office of Diane Letarte has no affiliations with any of the Newsletters. We do not promote (or endorse) any one resource over another. Some have correspondence classes are Free and others have a small fee for their services. Some Newsletters may be available or not. It is up to the reader to to the foot work and contact the individual entities for the latest information.

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

DISCLAIMER2:  -->

Please pardon any inconsistent formats in our TIPS and TIPS2. TIPS2 was created (during COVID19 pandemic) to get information out to the inmates’ Families so they can assist their Loved Ones for their Parole Hearing;  parts/sections were from different sources and formats.  Keep in mind, this is intended to be an “informal practical TIPs” document. We have no Editor or Publisher. The Attorney and staff are working “on their own free time” to try to gather the information for the inmates and/or Families of the incarcerated.
 

LA's New DA George Gascón's default policy : DA will not attend parole hearings & will support in writing the grant of parole when the minimum Eligible date has been reached.

George Gascón, A former beat cop, Assistant Chief of the Los Angeles Police Department and elected District Attorney, George Gascon's 40-year career in law enforcemnts has taken him from the streets of LA to the highest ranks of Law Enforcement and the Courtroom.

In his inauguration speech, Gascón said his time as a hard-charging LAPD cop in the 1980s and '90s helped shape his transformation into an advocate for wide-ranging criminal justice reforms. Gascon announced a sweeping range of reforms when he was sworn-in Monday, including no longer seeking the death penalty and not using gang enhancements for sentencing. 

Supporters of Gascon, say he is correct to try to reduce mass incarceration in California and instead seek more rehabilitative solutions in addition to mental-health treatment for offenders.

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More specifically information (below) to help the incarcerated population; it will be at their Parole Suitability Hearing...... Continue reading the excerpts below.

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 LA DA recognizes that parole is an effective process to reduce recidivism, ensure public safety, and assist people in successfully rejoining society. The CDCR’s own statistics show that people paroled from life terms have a recidivism rate of less than four percent.

LA DA states: we are not experts on rehabilitation. While we have information about the crime of conviction, the Board of Parole Hearings (BPH) already has this information.

Further, as the crime of conviction is of limited value in considering parole suitability years or decades later, (see In re Lawrence (2008) 44 Cal.4th 1181; In re Shaputis (2008) 44 Cal. 4th 1241, 1255), the value of a prosecutor’s input in parole hearings is also limited. Finally, pursuant to Penal Code section 3041, there is a presumption that people shall be released on parole upon reaching the Minimum Eligible Parole Date (MEPD), their Youth Parole Eligible Date, (YEPD), or their Elderly Parole Date (EPD).

Currently, sentences are being served that are much longer than the already lengthy mandatory minimum sentences imposed. Such sentences are constitutionally excessive. (See In re Palmer (2019) 33 Cal.App.5th 1199.)

This LA’s Office’s default policy is that we will not attend parole hearings and will support in writing the grant of parole for a person who has already served their mandatory minimum period of incarceration, defined as their MEPD, YEPD or EPD.

However, if the CDCR has determined in their Comprehensive Risk Assessment (CRA) that a person represents a “HIGH” risk rating for recidivism, the DDA may, in their letter, take a neutral position on the grant of parole.

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This SEA OF CHANGE is beyond our wildest hopes and dreams as Criminal Defense Attorneys. This is amazing! As a parole specialist, the fact that LA will now be supporting, instead of opposing, the majority of inmates (at parole hearings) is AMAZING.  

NOTE:  For someone who meets the specified criteria (over 15 years incarcerated, age, covid risks, etc) they can make a  direct  request for 1170(d) resentencing at the District Attorney's office. 

As a reminder:

In June 2018, the Legislature passed and Governor Brown signed Assembly Bill(AB) 1812,
which amended Penal Code § 1170(d)(1). The new law took effect immediately. 

Penal Code § 1170(d)(1) authorizes a court  to recall a sentence and resentence a person to a lesser sentence in two circumstances: (1) on the court’s own motion within 120 days after sentencing,  or (2) at any time upon a recommendation from the California Department of Corrections (CDCR) or  the Board of Parole Hearings (BPH) (or, for people in county jails, are commendation from the county correctional  administrator). The  CDCR’s  current  regulations about §1170(d)(1)  sentence  recall recommendations are in the California Code of Regulations, Title 15, §§3076-3076.2.  In  the  past,  the  CDCR  rarely  used  its  authority  to recommend sentence recalls. Now, they should because AB 1812 grants additional funds to the CDCR to investigate potential cases to refer for recall of sentence.

SEVENTH ANNUAL Lifer BBQ find YOUR LIFER or ATTORNEY

 

LIFER BBQ at City Buena Park - Fun had by ALL again!

The Seventh annual lifer picnic Hosted by Gary “Red” Eccher and Attorney Keith Chandler [ECCHER CONSULTING COMPANY (ECC)] grows every year, with the typical grilled hot dog, BBQ style. We had additional food items ranging from pizza to fried chicken; delivered fresh and hot throughout through the day.  The meals were well rounded with veggies, fruits (sweet)! We had great 75ish  degree weather with a cool breezes in the typical Southern Sunny California day. It appears that over 400 people gathered thorough the day at Buena Park from Noon to 6 pm. We added the usual LIFER Group picture (see below) taken on or about  3pm that afternoon.

Gary "Red" Eccher, Diane "Renegade Attorney" Letarte, Keith Chandler, Esq.

A BIG THANKS !!!!!!

to everyone that pitched in to help GARY & KEITH for this GREAT yearly summer BBQ.

 FIND YOUR LIFER - 

THE  3PM GROUP PHOTOS

 A BIG THANK YOU FOR ALL THAT PARTICIPATED AND TO ECC FOR ALL THEIR GENEROUS TIME AND EFFORT FOR ORGANIZING THIS ANNUAL LIFER EVENT!

 

Great friends re-united and a Warm Welcome given to Richard Shaputis  by "Doc" Miller, the CLN (newsletter) founder.

 

Renegade Attorney "incognito" on her Client's new Harley

  

 

Keith Chandler, esq.  with Attorney Fox and Letarte, her Legal assistant Yolanda Navarro, along with Attorney Letarte's released clients. 

 

 

Yolanda Navarro, Legal Assistant with David Garnica ARC

Attorneys Diane Letarte and Marc Norton at ECC BBQ

Yolanda Navarro (middle), the friendly voice of our Law Office

Attorney Letarte with released Client

Attorney Letarte with released Client & his wife

Staff having FUN at the BBQ

Let's not FORGET Vanessa Neilsen-Sloane from LSA who is such a strong Advocate for the Lifers. 

( Lifer Support Alliance - LSA)

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.


SUMMARY:
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.’” 

 

PROCEDURAL BACKGROUND
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.


FACTUAL BACKGROUND  Excerpts
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.”

DISCUSSION  Excerpts
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.


DISPOSITION
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

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!

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* 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.

In Re Vicks found Suitable after denying the crime for 30+ years!

IN RE VICKS  195 Cal.App.4th 475 (2011)   ( Prior case)
In re MICHAEL VICKS on Habeas Corpus.  No. D056998.
Court of Appeals of California, Fourth District, Division One.  May 11, 2011.

Michael Vicks is finally FOUND SUITABLE  after denying the crime for over 30 years. Mr. Vicks was denied parole at his Initial hearing with a 5-year denial, he was again denied parole for 3 year at his subsequent parole hearing. He kept getting denied becasue according to the Commissioners he had no insight and was mitigating the crime. In reality, Mr. Vicks has stayed true to his story for 32 years, that he and his co-defendant did NOT commit the rapes and robberies.  

At Mr. Vicks subsequent Parole hearing #2 (3rd BPH appearance), Mr. Vicks hired ATTORNEY DIANE LETARTE  and the rest is history. Attorney Letarte went out of her way to see the crime scene (yes, 32 years later). She took photos of the Ravine in San Diego where the purses of the rape Victims were discovered by Mr. Vicks (in 1983) and his Co-defendant, Mr. Cody. The location near I-94 was still as it was 32 year ago, except for a few grown trees - as describes by Mr. Vicks! The photos were used as a visual aid along with other evidence showing that Mr. Vick's story was NOT IMPLAUSIBLE (standard set by In Re Shaputis II for the PC 5011 denial of crime) and that  the only extent of Mr. Vicks' involvement in those crimes were to unfortunately find the two (2) stolen purses of the rape victims in a Ravine, on his way to a cousin's home.


Background Summary: 
In 1983, Michael Vicks was convicted of two counts of rape in concert, two counts of forcible oral copulation in concert, three counts of kidnapping, one count of kidnapping to commit robbery, and multiple counts of robbery On April1, 1983 and April 13, 1983 near Mission Valley. Vicks was sentenced to a total term of 37+ years to LIFE. Vicks, now 55 years old, has been incarcerated for more than 30 years.

At Vicks's first parole hearing, the Board of Parole Hearings (BPH) found him unsuitable for parole.  The BPH further concluded a five-year (5) denial of parole was appropriate under the circumstances.
Vicks petitioned the trial court for a writ of habeas corpus, but the court denied the writ, concluding the BPH's decision was supported by some evidence. Vicks then petitioned the Appellate court for a writ of habeas corpus. As we may recall back in the In re Vick case in 2011 --->

In 2011, Vicks asserts the BPH's decision to deny parole violated due process in 2 ways:

1) its conclusion that he posed an unreasonable risk of danger to society if released on parole was contrary to the only reliable evidence that he was not currently dangerous. (2015 UPDATE:  as of 2014, Vicks was still unsuitable, until he retained Attorney Letarte and on June 3, 2015 was found Suitable by BPH.)

2) He also asserted the imposition of a five-year (Marsy’s Law. Prop 9) cannot be applied to him without violating ex post facto principles. The Court back in 2011 concluded that the application of (Prop 9)  Marsy's Law violates ex post facto principles.  (2015 UPDATE:  Subsequent to this Court of Appeal 2011 decision. The CA Supreme Court stated that Prop 9 was not unconstitutional on its Face because inmates had the option file file a Petition to Advance their hearing.

STAY TUNE:  Federal Court under the Gilman  v. Brown case, Prop 89 (1988 Governor Veto power) is still in litigation with Oral argument in San Francisco. The Gilman case, of continuing interest to all LIFERS whose crime predated Nov. 8, 1988 and who's BPH grants of Parole were reversed by the Veto power of the Governor, is set for Oral argument June 17, 2015.

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 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 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.