In re PALMER, No. A147177 / S252145 - Petition for Review Filed 10/23/18

 In re PALMER  [25 Cal App5th 120], No. A147177 / S252145 *** Status UPDATE ***

As a quick reminder on the In re Palmer  - it is a great Youth Offender Parole Hearing case Published September 13, 2018. Shortly after the decision came out -- it was sent up to the CA Supreme with the Filing of a Petition for Review (by opposing counsel (aka BPH)) on October 23, 2018. No Surprise here!

SUMMARY:   (see my prior BLOG post)
In re Palmer was  published in September 2018 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 held 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.’”  

 

One of the interesting comments by Judge Kline in Palmer was the reference to the proposed Title 15 Ca. Code of Regs (CCR) 2440-2446 - which are still "in the making" by BPH for the Youth Offender Parole Hearings. The Youth Offender Regs are way overdue, in my opinion and many others. As you will notice below that comment [on proposed regs] did not go unnoticed by the Supreme Court. See the partial docket below of 11/26/18 on the Extension of time granted to December 7, 2018. This will give BPH a push to give priority to the new proposed youth offender Regs, which have been in the making for 4 years or so.

A second Note is the attempt [by BPH]  to "depublish" this great Youth Offender case. As you can see several agencies have pitched in to OPPOSE the depublication of the case.

Let's hope for the best on several fronts of this case... It appears there is more action to come in December stay tune... or  go to http://appellatecases.courtinfo.ca.gov/  using the search of In Re Palmer under the Supreme Court case #S252145

PROCEDURAL UPDATE of the case: 

 

 10/23/18       Petition for Review filed by BPH

 

 11/13/2018     Answer to petition for review filed by Petitioner  

11/13/2018     Request for depublication (petition for review pending)    

11/21/2018     Application for 14-day extension of time filed by  Petitioner

11/21/2018     Opposition to depublication request filed Pacific Juvenile Def. Ctr 

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11/26/2018     Extension of time granted The application for an extension of time is

granted to December 7, 2018. No further extensions of time are contemplated. In the reply to the answer to the petition for review, please also apprise the court of the following. 

 

1. What was the outcome of the December 6, 2018 parole suitability hearing for inmate Palmer? 

 

2. Was the December 6, 2018 hearing a regularly scheduled parole hearing, or an advanced hearing pursuant to Penal Code section 3041.5, subdivisions (b)(4) or (d)(1)? 

 

3. What formal action was taken, if any, at the Board of Parole Hearings' November 2018 Executive Board Meeting regarding proposed regulations for Parole Consideration Hearings for Youth Offenders (Cal. Code Regs., tit. 15, proposed §§ 2440-2446?)

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11/26/2018     Opposition to depublication request filed Dr. Kristen Bell Rstr. Justice

11/26/2018     Opposition to depublication request filed  by  Petitioner  

 

         ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

 

In contacting BPH regarding Cal. Code Regs., tit. 15, proposed §§ 2440-2446 STATUS this was their comment:

 

"We [BPH] are in the final stages of updating these regulations so that they are in compliance with AB 1308 and SB 394, which both took effect on January 1, 2018.  We initially anticipated voting on and filing these regulations earlier this year, however, Senate Bill 1242 (Reg. Sess. 2017-2018) was introduced this year and, in its earlier drafts, it was making additional amendments to the youth offender statutes. Thus, we were forced to again delay the regulations pending the outcome of that bill.  However, the bill was ultimately amended and those changes were removed.  Therefore, we are now in the last stages of finalizing these regulations for presentation to the commissioners"

 

 

 

 

STAY TUNE FOR In re PALMER updates in Dec 2018 and onto early 2019 - let's hope for the best outcome to assist all the YOUTH OFFENDERs which will have their Parole hearing coming up in 2019....

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

HUGE VICTORY FOR LIFERs as SB1437 [Felony Murder rule] waits for the Governor's signature

On 8/31/2018 inmates' families  (and all the advocates for the Bill) can claim a big victory (for  Lifers incarcerated via the old CA Felony Murder rule) --- as Senate Bill 1437 goes to the Governor's desk for signature. Remember: The felony-murder rule is an exception to the normal rules of California murder law. Generally, you cannot be convicted of murder in California unless you acted with "malice aforethought" - which basically means intent to kill, or a reckless disregard for human life.

At this point we are confident that Governor Brown will sign this bill into law, to then be effective January 1, 2019. Governor Brown has done much to reform the Justice system and helped clear out our overcrowded prisons. This would be one more "push" (on reforms) before he exits his position, on his last term as Governor of CA.

This bill is historic --  In California, the felony-murder rule has a statutory history that dates back to 1850. The felony murder rule has been law in California basically since the 1800s; this Bill is changing over 130 years of unjust law.  Under the new bill the first or second-degree murder conviction, which resulted in sentences of 25 to life, 15 to life or life without parole, would be vacated, (UNLESS a peace officer was involved) but be aware that the individual could still be sentenced for the remaining counts (i.e. robbery, carjacking, etc.). It is unclear how the DA will be handling these cases (i.e. petitions).

All those who are involved in a crime that results in a death, regardless of their level of participation, prior knowledge or aforethought, were adjudged to be as culpable as the individual who took the actions resulting in death. The new law requires convictions for murder to require ‘malice aforethought’ in involvement the crime and notes such malice cannot be imputed simply by participation in criminal acts that may be part of the crime.

SB 1437 does not abolish the felony murder rule. Rather, it limits a first-degree murder sentence to those who 1) actually killed; 2) aided and abetted the killing with the intent to cause death; or 3) acted as a major participant and with reckless disregard to human life during the course of the felony.


RELIEF: 

The relief will be available via a petition to their sentencing court(s) asking for consideration for recall of sentence on the murder conviction. Those filing such petitions will most likely be eligible for counsel, via the services of the county’s public defenders. If such petitions were successful and the murder conviction and resulting sentence was vacated, the court could still sentence the individual for participation in the underlying crime as well as mandating a term of parole supervision for 3 years following completion of any assessed sentence.

One can be ready and prepared ahead of time for this law but.....Any petitions filed with the Court cannot be considered valid, if filed before January 1, 2019. It is our opinion that a WELL CRAFTED petition with the assistance of a private attorney, will be more successful then just filing a Declaration that states one wants to be re sentenced.  Be aware that the individual could still be sentenced for the remaining counts (i.e. robbery, carjacking, etc.). In our opinion, if a Plea bargain was done (vs a trial - on the commitment offense) then it will be that much more difficult for the Court to properly re-sentence an individual, without having an abundance of evidence in front of the Court to make a proper ruling on the level of involvement in the underlying murder. We anticipate possible Court hearings (mini trials) to flush out some of the facts of the underlying murder case, especially if there is no Court of Appeal or "trial" record to assist the court.

Stay Tune..... it is just a guess at this time on HOW it will all unfold, as the rubber meets the road......


TRIVIA: In Canada;
In Canada, it has been held to be unconstitutional, as breaching the principles of fundamental justice.

The Canadian Charter of Rights and Freedoms states that a conviction for murder requires proof beyond a reasonable doubt of a subjective foresight of death. (i.e. INTENT TO KILL must be present)


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Thanks to the LSA newsletter for 

plucking out the relevant portions of the language of the bill as quoted below:

“It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.”

“Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.”

In order to achieve redress of sentence individuals must:

 “170.95. (a) A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.

(2) The petitioner was convicted of first degree or second-degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second-degree murder.

(3) The petitioner could not be convicted of first or second-degree murder because of changes to Section 188 or 189 made effective January 1, 2019.

(b) (1) The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney, or on the agency that prosecuted the petitioner, and on the attorney who represented the petitioner in the trial court or on the public defender of the county where the petitioner was convicted. If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition.”

“At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.

“A person who is resentenced pursuant to this section shall be given credit for time served. The judge may order the petitioner to be subject to parole supervision for up to three years following the completion of the sentence.”

It is up to the petitioner (prisoner seeking relief) to prove the prima facie case (at first look, or first evidence) that he or she comes under the guidelines of the bill and request counsel, if desired. It is also important to note that this bill will not wholly absolve many individuals from participation in a crime, such as robbery or assault that resulted in a death. While it may vacate the murder conviction, the courts are free to sentence the petitioner on the underlying or residual crime, and it is conceivable that those who may find relief from a murder conviction and be re-sentenced for the other offenses may still find themselves incarcerated, albeit probably with an end in sight.

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