In re Perez (12/29/16) : Use of inmate's innocence claim Unlawful to Deny Parole

2016 Cal. App. LEXIS 1149
Court of Appeal of California, First Appellate District, Division Two 


BOTTOM LINE: : The Board's questioning of the inmate about the life crime and use of his
claim of innocence to find current dangerousness was unlawful - PERIOD!

SUMMARY: Perez  was convicted of kidnapping for purposes of carjacking. During the Parole Suitability Hearing the evidence showed Perez expressed insight into his behavior at the time of the life crime. He also showed remorse to the extent possible, given his continuing claim of innocence; Despite the explicit constitutional and statutory mandate to do so, the board repeatedly failed to consider the inmate's youth (SB260) at the time of the crime, which, while serious, did not lead to any injuries and occurred some 19 years ago when he was 16 years old; The inmate did not have an extensive history of prison rules violations; He had been an exemplary prisoner for many years.
 
The court is required to affirm a denial of parole unless the Board decision does not reflect due consideration of all relevant statutory and regulatory factors or is not supported by a modicum of evidence in the record rationally indicative of current dangerousness, not mere guesswork.

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Analysis below by: Attorney Dennis Riordan
a Sustaining member of California Attorneys for Criminal Justice (CACJ) and has been a member since 1981.   (THANK YOU -   (Education use and for Defense Attorney)
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The Court vacated the Board of Parole Hearings' decision denying parole to Perez,
sixteen years old at the time he suffered convictions for robbery and carjacking, resulting in a life sentence. Rather than blindly deferring to the Board’s exercise of discretion, Division Two took the time and effort to drill down on the reasoning of the Board and to carefully review the hearing
evidence, finding that the reasoning simply was not supported by the evidence. In doing so, the opinion provides a wealth of useful language and reasoning for those representing young offenders in not only parole matters but other procedural contexts as well.


First, the Court deprecated the Board’s reflexive reliance on “lack of insight’ as a basis for denying parole, noting that rationale had effectively replaced the “heinous nature” of the offense as a reason for denial, so as to now constitute the “new talisman” for such denials. The Court then engaged in a detailed exposition of the petitioner’s statements at the hearing as to his understanding of why he had engaged in a pattern of criminality as a teenager, labeling as “baffling” the Board’s “repeated insistence” that Perez “had not explained how he had gravitated to negative influences...” In a stinging rebuke, the Court cited case law to the effect that the Board’s “mere refusal” to accept evidence showing understanding and remorse did not constitute a rational and sufficient basis to find that the inmate lacks insight or is “currently dangerous.” And the Court emphasized that a finding of lack of insight supported only by the inmate’s refusal to admit or discuss the commitment offense violates the
regulations barring reliance on such a refusal as a basis for denying parole. Likewise, to the extent that a negative psychological evaluation also rested on the inmate’s refusal to discuss the commitment offense, the reliance on that report is improper. The Court held: “In the circumstances of this case, the
Board’s veiled reliance on petitioner’s continuing refusal to admit guilt clearly
violated its own regulations and cannot be countenanced.”


Furthermore, the Court refused to rubberstamp the Board’s reliance on another convenient rationale for parole denial: the inmate’s disciplinary record, finding that Perez’s rules violations did not “provide some evidence supporting a conclusion that he poses a threat to public safety,” because his
few violations were greatly outweighed by his many in prison “educational and vocational  accomplishments.” Finally, along with much additional and helpful discussion of parole policy, the Court focused on the Board’s “repeated refusal to consider petitioner’s youth at the time of his life crime, despite the explicit constitutional and statutory mandate to do so.” In so doing, the Court cited to both case law and scientific studies recognizing youth and immaturity as a mitigating factor in the
commission of crime.


The Court fittingly concluded that the Board was determined to find a way to deny petitioner parole, even as the evidence supporting a finding of current danger diminished with each year that went by. Unable to justify petitioner’s continued detention on any lawful ground, the commissioners latched onto his continuing claim of innocence, violated the law, and improperly found him suitable based on his refusal to admit to having committed the crime.


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People v. Perez (8/1/16): A limited remand required to develop factors for Youth Parole Hearing: Franklin Hearing

Case Name: People v. Perez , District: 4 DCA , Division: 3 , Case #: G050927
Opinion Date: 8/1/2016 , DAR #: 9781

Case Holding:
An 86-years-to-life sentence for a defendant who was 20 years old when he committed three counts of attempted murder and other offenses does not constitute cruel and unusual punishment. Perez, a gang member, shot at three rival gang members, wounding one of them. He was convicted of three counts of premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187), gun use (Pen. Code, § 12022.53, subd. (d)) and other offenses. He received a sentence of 86 years to life. On appeal he claimed the sentence was cruel and unusual, as he was only 20 years of age when he committed the crime. Held: Judgment affirmed; limited remand ordered. In Graham v. Florida (2010) 560 U.S. 48, the court held a life without parole (LWOP) sentence on a juvenile convicted of a nonhomicide offense violates the Eighth Amendment and in Miller v. Alabama (2012) 132 S.Ct. 2455, the court extended this view to a sentencing scheme that mandates LWOP for juvenile offenders. The California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262, found a term of years that exceeded a juvenile offender's life expectancy cruel and unusual punishment. Perez argued the holdings of Graham, Miller, and Caballero should apply equally to defendants of his age. However, because Perez was not a juvenile at the time of the offenses, the considerations in these cases are inapplicable and the Court of Appeal declined to extend them to defendants over the age of 18 years (agreeing with similar holdings in People v. Argeta (2012) 210 Cal.App.4th 1478 and People v. Abundio (2013) 221 Cal.App.4th 1211).

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; THUS--> A CHANGE IN JUDGMENT

Court states: "Although we disagree his 86-years-to-life sentence constitutes cruel and unusual punishment, we must remand the matter for further proceedings consistent with this opinion. We affirm the judgment and order a limited remand.”  

A limited remand is required so defendant may have sufficient opportunity to put on the record the types of information relevant to a youth offender parole hearing. In response to Graham, Miller, and Caballero, the Legislature passed Senate Bill No. 260 (effective January 1, 2014), which created Penal Code sections 3051, 3046, subdivision (c), and 4801, subdivision (c). These sections provide a parole mechanism for juvenile offenders and require the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20th or 25th year of a defendant's incarceration depending on the controlling offense. Several categories of juvenile offenders are excluded, but these exclusions are inapplicable to Perez. Effective January 1, 2016, section 3051 was amended to extend the benefits of the section to anyone who committed his offense before the age of 23. In People v. Franklin (2016) 63 Cal.4th 261, the court found the juvenile offender's constitutional challenges to his sentence had been mooted by the enactment of sections 3051 and 4801, because the defendant might obtain release after serving 25 years of imprisonment. However, the court remanded the matter to allow the defendant to make a record of the kind of information that sections 3051 and 4801 deem relevant to a youth offender parole hearing. Similarly, Perez's case must be remanded to allow him the opportunity to make a record of his characteristics and circumstances at the time of the offense so it may be available to the Parole Board in the future.

The full opinion is available on the court's website here: http://www.courts.ca.gov/opinions/documents/G050927.PDF 


NOTE: Providing a big THANK YOU Central California Appellate Program (CCAP)  a nonprofit law office for providing this condensed version of the PEREZ Case. The summary included the modified Judgement (verbage) allowing an opportunity for defendants (inmates) to develop a Court record for relevant information at a future Youth Offender Parole Hearing.

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.